Opinion
1:21-cv-02915 (PGG) (SDA)
06-01-2022
Stewart M. Smith, Plaintiff, v. Aecom Tishman, et al., Defendants.
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE PAUL G. GARDEPHE, UNITED STATES DISTRICT JUDGE:
INTRODUCTION
Pro se Plaintiff Stewart M. Smith (“Plaintiff” or “Smith”) brings this action against Defendants AECOM Tishman and Tishman Construction Corporation(together, “Tishman”); Robert Holt (“Holt”), Mark Anthony Fleming (“Fleming”) and Harold Blake (“Blake”) (together, the “Individual Defendants”)(collectively, the “Defendants”), alleging that he was terminated and suffered other adverse employment actions based on his age and disability in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-34; the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. §§ 701-96; the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12101-213; the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 290-97; the New York City Human Rights Law (“NYCHRL”), N.Y. City Admin. Code §§ 8 101-8-131; the Trafficking Victims Protection Act of 2000 (“TVPA”), 22 U.S.C. § 7102; and the New York Penal Law § 230.34. (Compl., ECF No. 1, at PDF pp. 1-14.) Plaintiff also brings a claim for breach of contract. (See id. at PDF p. 6.)
The formal legal name for the corporate defendant is Tishman Construction Corporation; AECOM Tishman is a d/b/a for Tishman Construction Corporation. (Defs.' Mem., ECF No. 42, at 1 n.1.)
Holt and Fleming supervised Plaintiff and Blake was a member of Tishman management. (See Pl.'s Rev. Opp. Mem., ECF No. 46, at 3, 7.)
Currently before the Court is a motion by Defendants, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss Plaintiff's Complaint. (Defs.' 2/22/22 Not. of Mot., ECF No. 41.) For the reasons set forth below, I respectfully recommend that the motion be GRANTED IN PART and DENIED IN PART.
The Court is issuing its recommendation without oral argument because, after having reviewed the parties' submissions, the Court finds such argument is not needed.
For purposes of this motion, the Court accepts Plaintiff's allegations as true and draws all reasonable inferences in his favor. See City of Providence v. BATS Glob. Mkts., Inc., 878 F.3d 36, 48 (2d Cir. 2017).
Smith, who is over 40 years of age, was employed by Tishman for a construction project with the United States Government at the Guantanamo Bay Naval Base (“Guantanamo”) in a specialized personnel position. (See Compl. at PDF pp. 5, 8.) The October 12, 2018 letter agreement that Smith attaches to his Complaint stated that he was being offered a “temporary international assignment,” and that his employment was “At Will” and that he could be terminated “at any time with or without cause or advance notice.” (See id. at PDF pp. 28, 3132.)
Although the letter agreement is unsigned (see Compl. at PDF p. 32), Smith attached it to a memorandum he sent to the U.S. Equal Employment Opportunity Commission (“EEOC”), and refers to it in the memorandum as a “signed agreement.” (See id. at PDF pp. 23-32.)
Smith was hired on October 22, 2018, arrived at Guantanamo on November 9, 2018 and was terminated on January 21, 2019. (See Compl. at PDF p. 26.) The “initial overseas deployment of specialized personnel” at Guantanamo were all over 40 years of age. (See id. at 9.) “[W]ithin several weeks of arrival,” one of the personnel “departed,” and was replaced by “an individual local to the [Guantanamo] base,” who was under 40 years of age, and who was “vastly inexperienced.” (See id. at 9-10.) According to the Complaint, “Defendants' realization of potentially recruiting from the local population - more specifically young workers and subcontractors, became increasingly inciting and may have been a major contributing factor in [his] separation.” (See id. at 10.)
In the Intake Questionnaire he submitted to the EEOC, Plaintiff states that the younger worker was named “Isabel,” and that she was 18 years old. (See EEOC Intake Questionnaire, ECF No. 46-1, at 2.)
Smith suffers from a disability, i.e., chronic kidney dysfunction, about which Defendants were aware, and he sought and obtained assurances from Defendants that he would not be exposed to extreme and prolonged high temperatures. (See Compl. at PDF pp. 12-13.) Smith asserts that only 10% of his work was to be performed outside. (See id. at PDF pp. 10, 12.) However, due to the departure of the individual discussed above, and that individual being replaced by the younger, inexperienced worker, Smith and other site personnel were required to make “additional efforts,” which resulted in his increased exposure to the outside heat and sun. (See id. at PDF pp. 9-10.)
On January 9, 2019, Smith did not take a break all day, not even for lunch. (See Compl. at PDF p. 13.) He became ill the following day, January 10, 2019, and missed work. (See id.) On the evening of January 10, 2019, Tishman's management questioned Smith about his absence and made “veiled implications” that he “could los[e] his job” for missing work.(See id. at PDF pp. 1314.) On January 21, 1019, Smith was terminated. (See id. at PDF p. 14.)
Smith alleges that the younger local worker missed work on January 9, 2019 and further alleges, without stating the source of his knowledge, that she was not visited at her home by Tishman management to determine if her absence “was justified.” (See Compl. at PDF p. 14.)
On March 17, 2019, Smith completed an EEOC Intake Questionnaire. (See Intake Questionnaire.) Of relevance to the instant motion, he checked boxes on the form that the two bases for his employment discrimination claim were age and disability. (See id. at 2.) With respect to his age discrimination claim, the form states that “Isabel” was treated better than him and, with respect to his disability discrimination claim, the form states that he was discriminated against by Blake due to his kidney disease. (See id.)
On January 5, 2021, the EEOC advised Smith of its determination not to proceed further with its investigation and notified him of his right to sue. (See Compl. at PDF p. 19.) On April 3, 2021, Smith filed his Complaint in this action. (See Compl.)
On February 22, 2022, Defendants filed the motion to dismiss now before the Court, along with a memorandum of law. (See Defs.' 2/22/22 Not. of Mot.; Defs.' Mem.) On February 23, 2022, Defendants' motion was referred to me for a report and recommendation. (See Am. Order of Ref., ECF No. 43.) On April 22, 2022, Smith filed an opposition memorandum (see Pl.'s Opp. Mem., ECF No. 44) and on May 3, 2022, he filed a revised opposition memorandum. (See Pl.'s Rev. Opp. Mem.) On May 13, 2022, Defendants filed a reply memorandum. (See Defs.' Reply, ECF No. 47.)
LEGAL STANDARDS
To survive a motion to dismiss for failure to state a claim upon which relief can be granted under Rule 12(b)(6), a complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court “must accept as true all of the [factual] allegations contained in a complaint[,]” but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citation omitted).
“Where, as here, a plaintiff is proceeding Pro se, the Court must ‘construe his complaint liberally and interpret it to raise the strongest arguments that it suggests.'” Nelson v. Argyropoulous, No. 18-CV-11413 (AT), 2020 WL 1244295, at *2 (S.D.N.Y. Mar. 16, 2020) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)). “Even in a Pro se case, however, although a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (internal citation and quotation marks omitted). “The Court is obligated to draw the most favorable inferences that the complaint supports, but it cannot invent factual allegations that the plaintiff has not pled.” Id. (internal citation, quotation marks and alterations omitted).
DISCUSSION
I. Exhaustion Of Administrative Remedies
In their motion, Defendants argue that, with respect to his age and disability discrimination claims, Plaintiff failed to exhaust administrative remedies before the EEOC prior to filing this action because his EEOC charge did not mention age or disability discrimination. (Defs.' Mem. at 5-7, 9-10.) Under the ADEA and the ADA, an aggrieved person must file an EEOC charge against a party, and follow the requisite procedures, before bringing suit against that party.” Holowecki v. Fed. Exp. Corp., 440 F.3d 558, 562 (2d Cir. 2006), aff'd, 552 U.S. 389 (2008) (ADEA); Curto v. Edmundson, 392 F.3d 502, 503 (2d Cir. 2004) (ADA). The purpose of the exhaustion requirement is “to give the administrative agency the opportunity to investigate, mediate, and take remedial action.” Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 384 (2d Cir. 2015) (citation omitted).
In opposition to Defendants' motion, Plaintiff filed the Intake Questionnaire that he submitted to the EEOC, which mentions both age and disability discrimination. (See Intake Questionnaire at 2.) In reply, Defendants cite to cases outside the Second Circuit to argue that allegations contained in an intake questionnaire should not be considered for exhaustion purposes. (Defs.' Reply at 5-6.)
“An ‘Intake Questionnaire' allows an employee to provide the EEOC with basic preliminary information about herself, her employer, and the reason for her claim of discrimination, and begins the process of filing a charge of discrimination.” Littlejohn v. City of New York, 795 F.3d 297, 305 n.2 (2d Cir. 2015) (quoting Holowecki v. Fed. Express Corp., 440 F.3d 558, 566-67 (2d Cir. 2006)). “When the Intake Questionnaire manifests intent to have the agency initiate its investigatory processes, the questionnaire can itself constitute a charge of discrimination.” Id.
The current version of the EEOC intake questionnaire “require[s] a claimant to clearly express his or her intent by checking one of two boxes, thereby ‘forc[ing] claimants to decide whether their questionnaire is a request for the agency to take remedial action . . . or merely a request for further information.'” Lugo-Young v. Courier Network, Inc., No. 10-CV-03197 (RRM) (LB), 2012 WL 847381, at *6 (E.D.N.Y. Mar. 13, 2012) (quoting Hawthorne v. Vatterott Educ. Ctrs., Inc., No. 09-CV-00142 (TCK) (PJC), 2010 WL 3258560, at *4 (N.D. Okla. 2010)).
“[C]ourts commonly hold that checking Box 2 on the current form of the EEOC's Intake Questionnaire, which authorizes the EEOC to look into the discrimination described in the form and describing that discrimination in detail in the Questionnaire . . . qualifies as a charge with the EEOC for timeliness purposes.” Miller v. St. Luke's Roosevelt Hosp. Ctr., No. 15-CV-07019 (VEC) (GWG), 2016 WL 1275066, at *5 (S.D.N.Y. Apr. 1, 2016) (internal quotation marks omitted) (quoting Acheampong v. N.Y.C. Health and Hosps. Corp., No. 11-CV-09205 (LTS) (SN), 2015 WL 1333242, at *7 (S.D.N.Y. Mar. 25, 2015)).
In the present case, Plaintiff checked “Box 2,” indicating: “I want to file a charge of discrimination and I authorize the EEOC to look into the discrimination I described above.” (See Intake Questionnaire at 4.) I find that the Intake Questionnaire “manifests intent to have the agency initiate its investigatory processes.” Littlejohn, 795 F.3d at 305 n.2. Accordingly, I recommend that Defendants' motion to dismiss on the grounds of exhaustion be denied.
II. ADEA Claim
The ADEA makes it unlawful for an employer to “discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age,” where that individual is “at least 40 years of age.” 29 U.S.C. §§ 623(a)(1), 631(a). A plaintiff alleging an ADEA violation must prove that “age was the ‘but-for' cause of the challenged adverse employment action.” Gross v. FBL Fin. Sen's., Inc., 557 U.S. 167, 180 (2009).
In the present case, Plaintiff does not allege that he was terminated or that his work conditions changed because of his age. Rather, he alleges that he had to work more hours, including hours spent outdoors, because one of his co-workers departed and was replaced by an inexperienced co-worker. Such allegations do not plausibly allege that Plaintiff was discriminated against on the basis of his age. Accordingly, I recommend that Defendants' motion to dismiss Plaintiff's ADEA claim be granted.
Insofar as Plaintiff alleges that Tishman confronted him about his absence from work, but did not confront his younger co-worker about her absence from work a day earlier, Plaintiff has not plausibly alleged that such disparate treatment was based upon his age.
III. ADA Claim
The only ground upon which Defendants sought to dismiss Plaintiff's ADA claim against Tishman was exhaustion (see Defs.' Mem. at 9-10), which ground the Court considered and rejected above. Thus, Defendants implicitly concede that Plaintiff plausibly has alleged an ADA claim against Tishman. In any event, construing the Complaint allegations liberally, the Court finds that an ADA claim has been adequately stated against Tishman since Plaintiff plausibly has alleged that he was terminated for missing work and/or not working long hours outdoors in circumstances where he had a disability that prevented him from doing so. (See Compl. at PDF pp. 12-14.)
Nevertheless, the ADA claim against the Individual Defendants should be dismissed. As Defendants note (see Defs.' Mem. at 11 n.6), the ADA does not provide for individual liability. See Nelson v. City of New York, No. 11-CV-02732 (JPO), 2013 WL 4437224, at *14 (S.D.N.Y. Aug. 19, 2013). Accordingly, I recommend that Defendants' motion to dismiss Plaintiff's ADA claim against Tishman be denied, but that Defendants' motion to dismiss Plaintiff's ADA claim against the Individual Defendants be granted.
IV. Rehabilitation Act Claim
The Rehabilitation Act provides:
No otherwise qualified individual with a disability in the United States, as defined in section 7(20) [29 USC § 705(20) shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance ....29 U.S.C. § 794(a) (emphasis supplied). Defendants argue that the Rehabilitation Act does not have extraterritorial effect and, thus, does not apply here. (See Defs.' Mem. at 11-13.) The Court agrees with Defendants that the Rehabilitation Act does not apply extraterritorially. See Murphy v. Eisai, Inc., 503 F.Supp.3d 207, 216 (D.N.J. 2020) (“There is substantial case law . . . holding that the Rehabilitation Act does not have extraterritorial scope.” (citing cases)).
Section 705(20) defines “Individual With A Disability.” 29 USC § 705(20).
Plaintiff does not dispute this point, but instead argues that Guantanamo is not “foreign soil” and should be considered “in the United States” due to the unique lease agreement between the United States and Cuba. (Pl.'s Revised Opp. Mem. at 10-11.) As Plaintiff points out, “[t]he Lease Agreement [between the United States and Cuba] grants the United States ‘complete jurisdiction and control' over [Guantanamo].” Tur v. Nettleton, No. 21-CV-00483 (MMH) (LLL), 2022 WL 1223020, at *4 (M.D. Fla. Apr. 26, 2022). Nonetheless, Guantanamo indisputably is located in Cuba and, in Article III of the Lease Agreement, the United States recognizes the “continuance of the ultimate sovereignty of the Republic of Cuba over the [subject] areas ” Id. at *4 n.8. Accordingly, the Court finds that Guantanamo is not “in the United States” for purposes of the Rehabilitation Act. See Boumediene v. Bush, 553 U.S. 723, 754 (2008) (Cuba “maintains sovereignty, in the legal and technical sense of the term, over Guantanamo Bay”); see also Colon v. United States, No. 82-CV-00034 (CSH), 1982 U.S. Dist. LEXIS 16071, at *6 (S.D.N.Y. Nov. 24, 1982) (holding that Guantanamo is a “foreign country” under the Federal Tort Claims Act). Thus, the Court recommends that Plaintiff's Rehabilitation Act claim be dismissed.
V. NYCHRL And NYSHRL Claims
Plaintiff purports to bring claims under the NYCHRL and the NYSHRL for actions by Defendants at Guantanamo. (See Compl. at PDF p. 6.) New York State law and the New York City Administrative Code limit the applicability of the NYCHRL to acts occurring within the boundaries of New York City. See N.Y. Gen. Mun. Law § 239-s (1999); N.Y.C. Admin. Code § 2-201 (2003); see also Germano v. Cornell Univ., 2005 WL 2030355 (S.D.N.Y. Aug. 17, 2005) (“To state a claim under the NYCHRL, plaintiff must allege that the defendants intentionally discriminated against them within New York City.” (citations omitted)). In the present case, the alleged acts occurred outside of New York City, so the NYCHRL does not apply.
To state a claim under the NYSHRL, a non-resident plaintiff must allege that he felt an impact in New York State. See Hoffman v. Parade Publications, 15 N.Y.3d 285, 291 (2010). Because at all relevant times Plaintiff was working in Cuba, and in any event, resides in Virginia (Compl. at PDF p. 2), he cannot demonstrate an impact in New York State, and his NYSHRL claim should be dismissed.
VI. TVPA Claim
Plaintiff's claim under the TVPA is frivolous. Congress first enacted the TVPA in 2000. See Pub. L. No. 106-386, 114 Stat. 1464 (2000). In 2003, Congress amended and reauthorized the Act through the Trafficking Victims Protection Reauthorization Act (“TVPRA”), which established a civil remedy for victims of various forms of trafficking violations. See Pub. L. No. 108-193, 117 Stat. 2875 (2003). The TVPRA's Forced Labor statute prohibits anyone from knowingly obtaining the labor or services of a person:
(1) by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person;
(2) by means of serious harm or threats of serious harm to that person or another person;
(3) by means of the abuse or threatened abuse of law or legal process; or
(4) by means of any scheme, plan, or pattern intended to cause the person to believe that, if that person did not perform such labor or services, that person or another person would suffer serious harm or physical restraint.18 U.S.C. § 1589(a).
None of these elements is present here. Plaintiff was not forced by Defendants to work. Indeed, Plaintiff did not show up to work on January 10, 2019, because he did not feel well, which purportedly was a factor in his termination. Plaintiff does not allege that any force was used against him or that he was threatened with physical harm.
Accordingly, I recommend that Defendants' motion to dismiss the TVPA claim be granted.
VII. Penal Law Claims
Plaintiff's claims under the New York Penal Law (i.e., NY Penal Law §§ 135.35 (labor trafficking) and 230.34 (sex trafficking)) also are frivolous. Putting aside the fact that there are no plausible allegations that Defendants engaged in conduct violative of these statutes, these are provisions of the New York Penal Law that do not apply outside of New York. See McKinney's Cons. Laws of NY, Book 1, Statutes § 149 (“every statute in general terms is construed as having no extraterritorial effect”). In addition, “[P]laintiff himself does not have standing to compel any law enforcement agency to investigate or prosecute any suspected criminal acts as there is no private right of action to enforce state or federal criminal statutes.” Eggsware v. Doe, No. 22-CV-00054 (BKS) (CFH), 2022 WL 827640, at *5 (N.D.N.Y. Feb. 7, 2022), report and recommendation adopted, 2022 WL 823646 (N.D.N.Y. Mar. 18, 2022).
Accordingly, I recommend that Plaintiff's claims under the New York Penal Law be dismissed.
VIII. Breach Of Contract Claim
Plaintiff purports to base his breach of contract claim under Section 2-205 of the New York Uniform Commercial Code (“UCC”). (See Compl. at PDF p. 6.) Article 2 of the UCC deals with the sale of goods and has no application here. Contrary to Defendants' assertion, Plaintiff has identified a contract, as he attached to his Complaint an agreement with Tishman. (Compl. at PDF pp. 28-32.) However, he does not allege how that agreement was breached. Thus, I recommend that Plaintiff's claim for breach of contract be dismissed.
IX. Leave To Amend
“In this circuit, ‘[i]t is the usual practice upon granting a motion to dismiss to allow leave to replead.'” Leneau v. Ponte, No. 16-CV-00776 (GHW), 2018 WL 566456, at *18 (S.D.N.Y. Jan. 25, 2018) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991)). However, a District Court may deny leave to amend “for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.” Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir. 2009). Particularly since Plaintiff is a Pro se litigant, I recommend that he be given leave to amend his ADEA and breach of contract claims. However, I recommend that he not be given leave to amend his Rehabilitation Act, NYCHRL, NYSHRL, TVPA and Penal Law claims, as any such amendment would be futile. Plaintiff can plead no facts that would support plausible claims under these statutes. I also recommend that he not be given leave to amend his ADA claim against the Individual Defendants, since they can have no liability under that statute.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Defendants' motion to dismiss (ECF No. 41) be GRANTED IN PART and DENIED IN PART. Specifically, I recommend that Plaintiff's ADEA, Rehabilitation Act, NYCHRL, NYSHRL, TVPA, Penal Law and breach of contract claims be dismissed, and that the ADA claims against the Individual Defendants be dismissed. I further recommend that Plaintiff be given leave to amend his ADEA and breach of contract claims.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Gardephe.
THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).