Opinion
23-CV-03546 (DEH) (VF)
07-17-2024
ANTHONY T. STALEY, Plaintiff, v. HELEN SMART, et al., Defendants.
HONORABLE DALE E. HO, United States District Judge.
REPORT AND RECOMMENDATION
VALERIE FIGUEREDO United States Magistrate Judge
On April 27, 2023, Plaintiff Anthony Staley commenced this action against Defendants Helen Smart, Felicia Blake, Germaine Jackson, and Maia Collington, employees of the New York City Transit Authority (“NYCTA”). See ECF No. 1 (“Compl.”). Plaintiff subsequently filed two amended complaints adding as Defendants the NYCTA and additional NYCTA employees: Tomika Neal, Dorothy Reveria, Sheila Hudson, Osmond Charles, Tanya Forester, Victor Rodriguez, Myrthil Vladimir, Thomas Simmons, and “D. Peterson.” See ECF No. 5 (“Am. Compl.”); ECF No. 25 (“Second Am. Compl.”). Pending before the Court is a motion to dismiss filed by Defendants the NYCTA, Smart, Blakes, Jackson, and Collington. See ECF No. 29. For the reasons set forth below, I respectfully recommend that Defendants' motion be GRANTED. I further recommend that Plaintiff be afforded leave to amend his complaint.
Plaintiff's complaint listed “Ms. Collington MTA” as a Defendant. Compl at 2. His amended complaint identified Ms. Collington's first name, Maia. See ECF No. 5 (“Am. Compl.”) at 4.
The factual narrative provided herein is drawn from Plaintiff's Complaint, Amended Complaint, Second Amended Complaint, certain documents attached to his pleadings (see ECF No. 12) and, because Plaintiff is pro se, factual allegations made in his opposition brief, which was prepared with assistance from the New York Legal Assistance Group's Legal Clinic for Pro Se Litigants. See Graham v. Macy's Inc., No. 14-CIV-3192 (PAE), 2016 WL 354897, at *1 n.1 (S.D.N.Y. Jan. 28, 2016) (considering factual allegations made in pro se Plaintiff's opposition papers). The facts included by Plaintiff in his brief fill in significant details concerning the alleged conduct, clarify Plaintiff's allegations, and provide additional facts relevant to his claims. Given the posture of the case, I have construed the allegations in the light most favorable to Plaintiff. Id.
A. Factual Background
Plaintiff Anthony Staley worked for the NYCTA as a Cleaner for approximately 25 years. ECF No. 40 (“Pl.'s Opp. Br.”) at 2. His work involved cleaning the interior and exterior of subway cars, washing subway stations, and performing other upkeep of the NYCTA facilities. Id.
Plaintiff filed both a “Response in Opposition to Defendants' Motion to Dismiss” (ECF No. 38) and a “Memorandum of Law in Opposition to Defendants' Motion to Dismiss” (ECF No. 40). The filings are almost entirely identical, except the Memorandum amends some factual allegations and states that it “was prepared with assistance from the New York Legal Assistance Group's Legal Clinic for Pro Se Litigants in the SDNY.” Pl.'s Opp. Br. at 2-7.
On September 21, 2019, Plaintiff suffered a shoulder injury while on the job and the injury significantly restricted his range of motion, as well as his ability to perform repetitive movements and lift objects heavier than ten pounds. Id. at 4. Plaintiff notified the NYCTA of the injury and went on medical leave. Id. While on leave, he sent monthly medical reports to the “Injury-on-Duty” unit of the NYCTA. Id. Each report explained how Plaintiff “was limited by his disability” and provided his current address. Id.
The NYCTA has a standing policy of accommodating employees who become disabled as a result of work-related injuries by placing them in vacant positions. Id. at 3. The NYCTA initiates this process by mailing “return-to-work papers” to an employee's place of residence. Id.
The papers are completed by the employee's doctor with specific information about the employee's limitations. Id. The NYCTA then determines open positions for the employee to fill. Id. In 1997, Plaintiff went through this process when he suffered an injury. Id. He went on medical leave, received return-to-work papers at his home nine months later, filled them out, and was offered a position as a Transit Property Protection Agent. Id. Plaintiff was also offered, as an accommodation, the opportunity to work full-time on union business, which he accepted. Id. Three years later, after Plaintiff fully recovered, he returned to his permanent position as a Cleaner. Id. at 3-4.
By contrast, after his 2019 injury, Plaintiff did not receive his return-to-work papers. Id. at 4. In August 2020, some ten months after his injury, Plaintiff reached out to the NYCTA's President and Vice President of Labor Relations regarding his return-to-work papers, but never received a response. Id. Plaintiff also understood that due to the COVID-19 pandemic, the NYCTA was allowing injured employees an additional six months to obtain medical treatment. Am. Compl. at 5.
In October 2020, Plaintiff received shoulder surgery and underwent three months of rehabilitative treatment. Pl.'s Opp. Br. at 4. In November 2020, a co-worker informed Plaintiff that he had heard that the NYCTA had terminated Plaintiff's employment. Id. Plaintiff contacted his supervisor, who told Plaintiff that he had been terminated in October 2020. Id. at 4-5. Plaintiff's supervisor told Plaintiff that his return-to-work papers had been sent to a different address listed as Plaintiff's place of residence in the NYCTA's online “portal.” Id. Plaintiff, however, had not lived at this address since 1999, before the NYCTA's portal existed. Id. For the past 15 years, he had repeatedly used his current mailing address to communicate with the NYCTA labor relations department regarding union business. Id. at 2. In addition, some two months before his injury occurred, Plaintiff informed the Office of the Metropolitan Transit Authority Inspector General that the NYCTA's online portal showed an incorrect address and Plaintiff was told the issue had been resolved. Id. at 2-3. Plaintiff's correct mailing address was also listed on all of the monthly medical reports he provided to the NYCTA. Id. at 4. However, when Plaintiff told his supervisor, Defendant Maia Collington, about the error, she “refused to correct” it. Am. Compl. at 5.
Plaintiff did not receive notice of his termination from the NYCTA. Pl.'s Opp. Br. at 5. He did not see his notice of termination until he was given a copy of the notice in March 2021. Id. Plaintiff alleges that the NYCTA's repeated failure to contact him at his correct address was intentional “so that they could terminate him without providing an accommodation.” Id.
Plaintiff also alleges that, at the time of his termination, the NYCTA involuntarily put him on retirement. Id. at 6. He was not informed of this action until October 2021, when he contacted the New York City Employees' Retirement System (“NYCERS”) to apply for retirement. Id. He was also told that the NYCERS had retirement checks for Plaintiff in their possession, which they had been unable to mail because they did not have Plaintiff's address. Id. Plaintiff was further informed that, due to the nature of his October 2020 termination, he would not be entitled to the full retirement package he would otherwise have been eligible to receive. Id.
The NYCTA grants retired employees continued access to certain NYCTA facilities, including private subway bathrooms. Second Am. Compl. at 10. On July 15, 2022, Plaintiff attempted to use these facilities, but Defendant Germaine Jackson called a police officer she was personally acquainted with in order to remove Plaintiff from the bathroom, calling Plaintiff a “rogue terminated employee.” Am. Compl. at 5. The police officer had Jackson on speaker phone when the officer stopped Plaintiff. Pl.'s Opp. Br. at 6. Plaintiff was arrested for trespassing, though the charges were dismissed. Id.
On both July 15, 2022, and September 12, 2022, Jackson and the NYCTA also had flyers with Plaintiff's name, photo, age, race, and sex posted in non-public areas of subway stations. Id.; see also ECF No. 12 at 4-6 (attaching the flyers). At the top of the flyer is a header with the phrase “ACCESS DENIED” followed by “LOCATION: ALL LOCATIONS.” ECF No. 12 at 4-6. The flyer states that Plaintiff is “a Retired MTA employee” and instructs that if Plaintiff attempts to enter “any non-public area of the system,” security should be contacted. ECF No. 12 at 4-6; see also Pl.'s Opp. Br. at 6-7. The flyer also directed employees to “immediately report any suspicious persons, unusual encounters or inquiries, or unusual vehicles or packages.” ECF No. 12 at 4-6. Further, the flyer indicated that Plaintiff was “prohibited from entering listed nonpublic MTA/NYCT facilities.” Id. According to Plaintiff, the flyer “closely resemble[d]” flyers used by law enforcement to identify wanted criminals. Pl.'s Opp. Br. at 6-7. Plaintiff contends that the flyers harmed his reputation and credibility as a union member. Id. at 18-19.
B. Procedural Background
On April 27, 2023, Plaintiff commenced this action against Defendants Helen Smart, Felicia Blake, Germaine Jackson and Maia Collington, employees of the NYCTA, alleging violations of the Age Discrimination in Employment Act of 1967 (the “ADEA”), 29 U.S.C. § 621 et seq., the Americans with Disabilities Act of 1990 (the “ADA”), 29 U.S.C. § 12131 etseq., and the Rehabilitation Act of 1973, 29 U.S.C. §701 et seq. See Compl. at 4. The next day, Plaintiff filed an Amended Complaint, adding as defendants the NYCTA and another NYCTA employee, Dorothy Reveria. Am. Compl. at 4-5. On August 14, 2023, Plaintiff filed a Second Amended Complaint, adding NYCTA employees Tomika Neal, Sheila Hudson, Osmond Charles, Tanya Forester, Victor Rodriguez, Thomas Simmons, and D. Peterson as defendants, and Plaintiff also added additional claims under Title VII of the Civil Rights Act of 1964, 18 U.S.C. §§ 1503, 1513(e), and 15 U.S.C. § 1692. Sec. Am. Compl. at 4-7.
For the individual defendants, the docket includes affidavits of service for only the five individuals named in the original complaint. See ECF No. 30 at 2-3, ECF Nos. 16, 17, 18, 19, 20.
On September 19, 2023, Defendants the NYCTA, Smart, Blakes, Jackson, and Collington moved to dismiss all claims. See ECF No. 30 (“Defs.' Br.”). On November 7, 2023, Plaintiff filed his brief in opposition to the motion to dismiss. See Pl.'s Opp. Br. In his opposition, Plaintiff did not contest dismissal of his claims under Title VII, the ADEA, and claims asserted under statutes governing criminal behavior-namely, 15 U.S.C. §§ 1503, 1513(e), and 1692 (d). Pl.'s Opp. Br. at 7. He also did not contest the dismissal of all claims against all individual Defendants, except for two claims brought against Germaine Jackson for defamation and false arrest. Id. In his brief, Plaintiff described his claims as (1) a failure-to-accommodate claim under the ADA and the Rehabilitation Act against the NYCTA; (2) a failure-to-accommodate claim under the New York Human Rights Law and the New York City Human Rights Law against the NYCTA; (3) a defamation claim against Jackson and the NYCTA; and (4) a false-arrest claim against Jackson and the NYCTA. See id. at 1, 18, 19. Plaintiff requested, in the alternative, leave to amend his complaint given his pro se status and recent work with the Pro Se Legal Clinic. See id. at 1. On November 28, 2023, Defendants filed their reply brief. See ECF No. 43 (“Defs. Reply Br.”).
On February 2, 2024, Plaintiff filed a Motion to “Enforce the ADA” against the NYCTA, based on the alleged denial of access to the bathroom facilities inside subway stations and seeking a “reasonable accommodation.” ECF No. 53. Defendants filed a letter opposing the motion on February 20, 2024. ECF No. 55. To the extent Plaintiff is seeking injunctive relief, the motion should be denied because, as explained below, Plaintiff has not plausibly alleged a claim under the ADA. See infra Point A.
LEGAL STANDARD
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint “must plead ‘enough facts to state a claim to relief that is plausible on its face.'” Green v. Dep't of Educ. of City of N.Y., 16 F.4th 1070, 1076-77 (2d Cir. 2021) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). In determining if a claim is sufficiently plausible to withstand dismissal, a court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The court's function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985) (citation omitted). When presented with a motion to dismiss pursuant to Rule 12(b)(6), the court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (citation omitted).
The Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest arguments that they suggest.” Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)); McKithen v. Brown, 481 F.3d 89, 96 (2d. Cir. 2007) (holding that pleadings and allegations of a pro se plaintiff must be construed liberally for the purposes of deciding motions pursuant to Rule 12(b)(6)). But the “special solicitude” afforded pro se litigants, Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (citation omitted), has its limits: “a pro se complaint must state a plausible claim for relief,” Hogan v. Fisher, 738 F.3d 509, 515 (2d Cir. 2013). See also Morren v. New York Univ., No. 20-CV-10802 (JPO) (OTW), 2022 WL 1666918, at *12 (S.D.N.Y. Apr. 29, 2022) (“[T]he Court may not invent factual allegations that a plaintiff has not pled.”) (citation and internal quotation marks omitted). The “factual allegations [must be] sufficient to raise a right to relief above the speculative level.” Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008) (internal quotation marks omitted); Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (“Even in a pro se case, however . . . threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”) (citation and internal quotation marks omitted).
DISCUSSION
A. Plaintiff has not alleged a failure-to-accommodate claim against the NYCTA under the ADA or the Rehabilitation Act.
Plaintiff asserts claims against the NYCTA for violation of the ADA and the Rehabilitation Act. Plaintiff alleges that he sustained a shoulder injury which rendered him disabled, and although he provided the NYCTA with notice of that injury, the NYCTA intentionally sent work reassignment papers to the wrong address, failed to provide a reasonable accommodation, and terminated his employment. Pl.'s Opp. Br. at 7-16. The NYCTA contends that Plaintiff failed to provide it with notice that he was seeking an accommodation for his shoulder injury. Defs.' Br. at 7. The NYCTA further argues that Plaintiff cannot raise any inference of discrimination because he was lawfully dismissed under the New York Civil Service Law. Id. at 7-8. As explained below, although Plaintiff has plausibly alleged that he provided the NYCTA with notice of his disability and that the NYCTA failed to provide him with a reasonable accommodation, he has not alleged the existence of a “disability” of the type covered under the ADA or the Rehabilitation Act.
“The standards under the [ADA and Rehabilitation Act] are generally the same,” and prohibit the same conduct. Anderson v. City of New York ___ F.Supp.3d ___, No. 22-CV-3990 (NSR), 2024 WL 183103, at *10 (S.D.N.Y. Jan. 17, 2024) (quoting Langella v. Mahopac Cent. Sch. Dist., No. 18-CV-10023 (NSR), 2023 WL 2529780, at *3 (S.D.N.Y. Mar. 15, 2023)); see also De Figueroa v. City of New York, 403 F.Supp.3d 133, 158-59 (E.D.N.Y. 2019) (finding that Plaintiff asserted claims under both the ADA and Rehabilitation Act). As such, I address Plaintiff's ADA and Rehabilitation Act claims together.
To the extent Plaintiff may also be asserting this claim against any of the individual defendants, the claim must be dismissed as against them because the ADA does not provide for individual liability, even where the individual is in a supervisory capacity. See Baldwin v. N.Y.C. Dep't of Youth & Cmty. Dev., No. 11 Civ. 7744 (PGG), 2012 WL 13034914, at *2 (S.D.N.Y. Dec. 28, 2012).
“The ADA prohibits discrimination against any ‘qualified individual with a disability because of the disability of such individual in regard to,' inter alia, discharge from employment.” Sista v. CDC Ixis N. Am. Inc., 445 F.3d 161, 169 (2d Cir. 2006) (quoting 42 U.S.C. § 12112(a)). To establish a prima facie case of failure to accommodate under the ADA and the Rehabilitation Act, a plaintiff must show that “(1) plaintiff's employer is subject to the ADA; (2) plaintiff was disabled within the meaning of the ADA; (3) plaintiff was otherwise qualified to perform the essential functions of their job, with or without reasonable accommodation; and (4) plaintiff suffered [an] adverse employment action because of their disability.” Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir. 2004) (internal quotation omitted); Della Mura v. City of Mount Vernon, No. 19-CV-8699 (AEK), 2022 WL 4658453, at *3 (S.D.N.Y. Sep. 30, 2022) (listing the prima facie elements of an ADA claim in the context of a motion to dismiss); Benson v. Westchester Med. Ctr., No. 20-CV-5076 (PMH), 2022 WL 2702544, at *10 (S.D.N.Y. July 12, 2022) (“The Rehabilitation Act requires the same constituent elements [as the ADA], albeit tailored to that statute.”); Lyons v. Legal Aid Soc., 68 F.3d 1512, 1514-15 (2d Cir. 1995) (examining the same elements for ADA and Rehabilitation Act claims). At the pleading stage, a plaintiff need not allege specific facts establishing each element of a prima facie case. See Luka v. Bard College, 263 F.Supp.3d 478, 486-87 (S.D.N.Y. 2017); see also Limauro v. Consol. Edison Co. of N.Y., Inc., No. 20-CV-03558 (CM), 2021 WL 466952, at *5 (S.D.N.Y. Feb. 9, 2021) (“At the motion-to-dismiss stage, a court will not dismiss a discrimination claim as long as the complaint alleges facts suggesting that the plaintiff was treated ‘less well' because of his disability.”) (quoting Gonzalez v. City of New York, 377 F.Supp.3d 273, 301 (S.D.N.Y. 2019)). Here, the NYCTA does not dispute that they are an employer covered by the ADA and the Rehabilitation Act, and that Plaintiff suffered an adverse employment action. Defs.' Br. at 6-8.
1. Plaintiff has failed to allege a “disability” under the ADA or the Rehabilitation Act. To allege a “disability” under the ADA and Rehabilitation Act, Plaintiff must allege that he suffers from a “physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(A)(1); 29 U.S.C. § 705(9)(A) (defining disability as “a physical or mental impairment that constitutes or results in a substantial impediment to employment”). The ADA contains a non-exhaustive list of “major life activities,” including “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping and . . . working.” U.S.C. § 12102(2). The definition of a disability which substantially limits such activities is “not an exacting one.” Woolf v. Strada, 949 F.3d 89, 94 (2d Cir. 2020). But an “‘inability to perform a particular job does not constitute a substantial limitation in the major life activity of working.'” Id. at 94 (quoting Cameron v. Cmty Aid for Retarded Children, Inc., 335 F.3d 60, 65 (2d Cir. 2003)).
Courts examine several factors in determining whether a plaintiff's limitation qualifies as “substantial,” including “the nature and severity of the impairment; its duration or expected duration; and the existence of any actual or expected permanent or long-term impact.” O'Hara v. Bd. of Coop. Educ. Servs., S. Westchester, No. 18-CV-8502 (KMK), 2020 WL 1244474, at *12 (S.D.N.Y. Mar. 16, 2020). “Not every injury is considered a disability under the ADA.” Zick v. Waterfront Comm'n of N.Y. Harbor, No. 11-CV-5093 (CM), 2012 WL 4785703, at *4 (S.D.N.Y. Oct. 4, 2012). Courts in this Circuit have concluded that “temporary non-chronic impairments of short duration, with little or no long-term or permanent impact, are usually not disabilities.” Rector v. Sylvania, 285 F.Supp.2d 349, 354 (S.D.N.Y. 2003). A shoulder injury that is temporary therefore would not qualify as a “disability,” within the meaning of the ADA and Rehabilitation Act, even if such an injury prevented the individual from performing work for a period of time. See, e.g., Morris v. Town of Islip, No. 12-CV-2984 (JFB) (SIL), 2014 WL 4700227, at *10 (E.D.N.Y. Sept. 22, 2014) (finding that a shoulder injury which rendered plaintiff temporarily “unable to lift” his arm did not qualify as a disability); Lajeunesse v. Great Atl. & Pacific Tea, 160 F.Supp.2d 324, 331 (D. Conn. 2001) (finding that a substantial rotator cuff injury which completely incapacitated plaintiff for a period of time did not qualify as a disability); see also Zick, 2012 WL 4785703, at *5 (dismissing an ADA claim where plaintiff “failed to allege that her injury was more than temporary, or that complications arose from her injury”).
The complaint fails to allege that Plaintiff's shoulder injury was anything other than temporary and thus Plaintiff has not alleged that he suffers from a “disability” within the meaning of the ADA or the Rehabilitation Act. Plaintiff describes his shoulder injury as “significantly restrict[ing] his range of motion” and leaving him “unable to perform repetitive movements.” Pl.'s Opp. Br. at 4. He states that he had surgery for the injury, followed by three months of physical therapy. Id. Plaintiff does not, however, describe any impact to his daily activities from the shoulder injury following his surgery and physical therapy. For example, he does not provide any factual detail concerning any present restrictions on his shoulder mobility, range of motion, or ability to lift objects greater than 10 pounds. See Zick, 2012 WL 4785703, at *4-5 (plaintiff's broken leg was a temporary injury unprotected as a “disability” under the ADA); McDonald v. City of New York, 786 F.Supp.3d 588, 608 (E.D.N.Y. 2011) (plaintiff cleared by doctor to walk up to three miles per day could not show a substantial limitation); Colwell v. Suffolk Cnty. Police Dep't, 158 F.3d 635, 646 (2d Cir. 1998) (plaintiff prevented from working for seven months by injury-related internal hemorrhage and unable to lift “anything heavy” could not establish a substantial limitation of a major life activity). Without details about the condition of Plaintiff's shoulder after his surgery and rehabilitation, there is no information from which to plausibly infer that Plaintiff alleged the existence of a substantial limitation of a major life activity rather than a temporary injury. See Zick, 2012 WL 4785703, at *4 (explaining that even a more serious injury, such as a broken hip “may not be considered a ‘disability' for purposes of the ADA [unless] the hip heals improperly, resulting in long-term difficulty in walking....”) (alteration in original). Plaintiff has thus failed to adequately plead that he suffers from a disability within the meaning of the ADA or the Rehabilitation Act. This alone is a sufficient basis to dismiss his ADA and Rehabilitation Act claims.
2. Plaintiff has pled that the NYCTA received reasonable notice of his injury.
To plead a claim under the ADA and the Rehabilitation Act, Plaintiff must allege that the NYCTA “knew or reasonably should have known” of his disability. Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008); Shine v. N.Y.C. Housing Auth., No. 19-CV-4347 (RA), 2020 WL 5604048, at *3 (S.D.N.Y. Sept. 18, 2020) (stating the elements required for a Rehabilitation Act claim). “What matters under the ADA are not formalisms about the manner of the request, but whether the employee . . . provides the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for an accommodation.” Goonan v. Fed. Rsrv. Bank of N.Y., No. 12-CV-3859 (JPO), 2014 WL 3610990, at *5 (S.D.N.Y. July 22, 2014) (quoting Taylor v. Phoenixville Sch. Dist., 174 F.3d 142, 162, on reh'g, 184 F.3d 296 (3d Cir. 1999)); see, e.g., Malzberg v. New York Univ., No. 19-CV-10048 (LJL), 2022 WL 889240, at *13 (S.D.N.Y. Mar. 25, 2022) (notice satisfied where an individual applied to another position and showed up to work); Kurlender v. Ironside Grp. Inc., No. 18-CV-3839, 2019 WL 1317405, at *3 (E.D.N.Y. Mar. 22, 2019) (notice pled where plaintiff discussed with employer changing travel plans for “health reasons” and sent employer a form marking the box for “disabled”).
Relying on Costabile v. New York City Health and Hospitals Corporation, the NYCTA argues that Plaintiff failed to provide adequate notice of his injury. 951 F.3d 77, 82 (2d Cir. 2020). In Costabile, the Second Circuit affirmed the dismissal of a pro se plaintiff's “reasonable accommodation” claim where the plaintiff alleged that his employer received “regular updates from his doctor on his condition and ability to work,” but alleged “no facts about the content of those updates from which it could plausibly be inferred that Plaintiff's disability was ‘obvious' to Defendants.” Id. Costabile is distinguishable.
Here, Plaintiff's allegations concerning the notice he provided his employer are more detailed than the allegations in Costabile and suffice to state a claim. Plaintiff alleges that he sent monthly medical reports to the NYCTA Injury-on-Duty unit which detailed “specifically how the Plaintiff was limited by his disability.”Pl.'s Opp. Br. at 4. Costabile also involved a plaintiff who repeatedly went on medical leave and returned to work, such that another stretch of leave would not reasonably lead his employer to believe that he sought an accommodation for a disability. Costabile, 951 F.3d at 79. By contrast, Plaintiff had no period of extended medical leave before his 2019 shoulder injury, except for a separate foot injury 25 years earlier. Pl.'s Opp. Br. at 3-4. Last, unlike in Costabile, where the plaintiff received but failed to respond to an employer notice requesting his medical information, Plaintiff here alleges that he received no such papers even after affirmatively sending e-mails to the NYCTA's Vice President of Labor Relations regarding the status of those papers. Compare Costabile, 951 F.3d at 79-80 with Pl.'s Opp. Br. at 4.
Although Plaintiff's allegations regarding the notice he provided to the NYCTA are thin, the allegations suffice at this stage. They plausibly suggest that Plaintiff provided monthly reports to the NYCTA which explained the extent of his shoulder injury and the limitations he was experiencing as a result of that injury. However, should Plaintiff be granted leave to amend, he should be instructed to provide additional information to support his allegations concerning the information he sent to the NYCTA. For example, Plaintiff could provide specific details about the contents of the medical reports, including any information about his injury and how it impacted his daily activities.
3. Plaintiff has alleged that a reasonable accommodation existed.
A plaintiff bringing a “reasonable accommodation” claim under the ADA or the Rehabilitation Act must allege that an accommodation existed at the time of his disability. See 42 U.S.C. § 12111(9); Jackan v. New York Dep't of Labor, 205 F.3d 562, 567 (2d Cir. 2000). Reassignment to a vacant position which the employee is qualified for constitutes a “reasonable accommodation.” See Felix v. N.Y.C. Transit Auth., 154 F.Supp.2d 640, 655 (S.D.N.Y. 2001); see also Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 99 (2d Cir. 1999) (“[W]here a comparable position is vacant and the disabled employee is qualified for the position, an employer's refusal to reassign the employee to that position-absent some other offer of reasonable accommodation-constitutes a violation of the ADA.”). At the pleading stage, a plaintiff must allege only their general knowledge of an open position for which they would be qualified. See Niemczura v. Coral Graphics Servs., Inc., No. 04-CV-5452 (TCP) (MLO), 2005 WL 3113424, at *4 (E.D.N.Y. Nov. 15, 2005).
Here, Plaintiff alleges that there were vacant “Transit Property Protection Agent” positions throughout the period of his injury, and that other injured employees were reclassified into those positions during that time. Pl.'s Opp. Br. at 4. Additionally, during his previous period of disability in 1997, Plaintiff was offered this same position. Id. at 3. Plaintiff has thus alleged that he was qualified for this open position. Id. at 3-4. At this stage, Plaintiff has plausibly alleged that the NYCTA could reasonably accommodate his alleged disability by reclassifying him into a vacant position which he had previously held.
4. Plaintiff has alleged that the NYCTA failed to provide a reasonable accommodation.
An employer violates the ADA and the Rehabilitation Act when it fails to “mak[e] reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee,” unless the employer can establish that the accommodations would “impose an undue hardship.” 42 U.S.C. § 12112(b)(5)(A); 29 U.S.C. § 794(a). “The ADA envisions an ‘interactive process' by which employers and employees work together to assess whether an employee's disability can be reasonably accommodated.” See Jackan, 205 F.3d at 566. The purpose of this process is to “identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.” Sivio v. Village Care Max, 436 F.Supp.3d 778, 794 (S.D.N.Y. 2020) (quoting Noel v. BNY-Mellon Corp., No. 10-CV-9143 (JSR), 2011 WL 4633884, at *2 (S.D.N.Y. Oct. 4, 2011)).
A well-executed interactive process may involve the employer “meet[ing] with the employee who requests an accommodation, request[ing] information about the condition and what limitations the employee has, ask[ing] the employee what he or she specifically wants, show[ing] some sign of having considered the employee's request, and offer[ing] and discuss[ing] available alternatives when the request is too burdensome.” Goonan, 2014 WL 3610990, at *5 (S.D.N.Y. July 22, 2014). An employer can be found liable where they are “responsible for a breakdown” in this interactive process. Thompson v. City of New York, No. 03-CV-4182 (JSR)(JCF), 2006 WL 2457694, at *4 (Aug. 10, 2006), R&R adopted by 2006 WL 6357978 (S.D.N.Y. Sep. 11, 2006). “An employer impedes the process when: the employer knows of the employee's disability; the employee requests accommodations or assistance; the employer does not in good faith assist the employee in seeking accommodations; and the employee could have been reasonably accommodated but for the employer's lack of good faith.” Goonan v. Fed. Rsrv. Bank of N.Y., 916 F.Supp.2d 470, 480 (S.D.N.Y. 2013).
Plaintiff alleges that the NYCTA acted in bad faith by failing to send his return-to-work papers to his correct mailing address, even after Plaintiff repeatedly corresponded with the Labor Relations Office from his correct address, identified a problem with the address listed on the NYCTA portal, and provided the NYCTA with monthly medical reports that included his correct address. See Pl.'s Opp. Br. at 1-7. Viewed in the light most favorable to Plaintiff, his allegations suggest that the NYCTA, by failing to “even attempt contact” with Plaintiff, did not act in good faith in attempting to accommodate Plaintiff's alleged disability. His allegations concerning the NYCTA's repeated failure to even begin the “interactive process” suffice to state a claim. See, e.g., Thompson v. City of New York, No. 98-CV-4725 (GBD), 2002 WL 31760219, at *8 (S.D.N.Y. Dec. 9, 2002) (“[A] party that fails to communicate, or withholds important information solely within the knowledge of that party, can be found to have obstructed the [interactive] process in bad faith.”); Rogers v. Niagara Cnty., No. 22-CV-792 (JLS) (MJR), 2023 WL 10949028, at *8 (Sept. 13, 2023), R&R adopted by 2024 WL 1298116 (W.D.N.Y. Mar. 27, 2024) (allegation that county received notice of plaintiff's disability and indicated it would transfer plaintiff to another position but never began this process sufficed to state a claim); Shider v. Allied Universal Sec. Co., No. 21-CV-6425 (LDH) (LB), 2023 WL 2652280, at *3 (E.D.N.Y. Mar. 27, 2023) (plaintiff's allegations that they attempted to contact defendant employer multiple times regarding a reasonable accommodation but received no response sufficed to state a claim).
Defendants contend that Plaintiff was lawfully terminated pursuant to Section 71 of the New York Civil Service Law, which vitiates any inference of discrimination. Defs.' Br. at 5. Section 71 provides that an employee who sustains an “occupational injury or disease . . . shall be entitled to a leave of absence for at least one year, unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of duties of his or her position.” Id. Plaintiff submitted a copy of his termination letter to the Court, and it states that Plaintiff was dismissed “pursuant to § 71 of the Civil Service Law.” See ECF No. 12 at 6-7. Defendants argue that, as Plaintiff introduced the letter in a filing, it is “part and parcel” of his pleadings and can be considered for the truth of its contents. See Defs. Reply Br. at 3-4.
Even assuming that the Court could consider the contents of the termination letter- which was not appended to any of Plaintiff's complaints-Plaintiff contests the propriety of his dismissal, arguing that the NYCTA's repeated failure to send him relevant materials was intended to “terminate him without providing an accommodation.” Pl.'s Opp. Br. at 6. Plaintiff further argues that he was not even properly dismissed under Civil Service Law § 71, which requires employers to “strictly follow” certain statutory notice requirements. Wickwire v. State Univ. Health Science Ctr. at Syracuse, 648 N.Y.S.2d 263, 264 (Sup. Ct., Onondaga Cnty. 1996); 4 NYCRR § 5.9(c)(2) (“[N]o such termination of service, if not the result of a hearing, shall be effective until 30 days from the service upon the employee, in person or by mail, of a notice of such impending action . . . .”); see also Matter of Cooke v. City of Long Beach, 247 A.D.2d 538, 538 (2d Dep't 1998) (restoring petitioner to her position where respondent employer “failed to serve notice to the petitioner of the impending termination of her employment at least 30 days thereto pursuant to 4 NYCRR § 5.9(c)(2)”). Whether Plaintiff was properly dismissed pursuant to Section 71 of the Civil Service Law is not an issue that can be resolved at the pleading stage. See Dossous v. N.Y.C. Health & Hosps., No. 19-CV-3098 (MKB), 2020 WL 5752175, at *6 (E.D.N.Y. Sept. 25, 2020) (declining to dismiss plaintiff's claims despite defendant's introduction of materials indicating that plaintiff was dismissed pursuant to Civil Service Law § 71 because Plaintiff argued that “his termination under section 71 was a pretext for disability discrimination”); cf. Meyer v. William Floyd Union Free Sch. Dist., No. 07-CV-2524 (JS) (ETB), 2008 WL 4415271, at *6 (E.D.N.Y. Sept. 24, 2008) (granting motion to dismiss ADA claim where “Plaintiff . . . [did] not respond whatsoever to Defendants' argument that Defendants terminated Plaintiff pursuant to the Civil Service Law.”)(emphasis included); see also Tyson v. Town of Ramapo, No. 17-CV-4990 (KMK), 2019 WL 1331913, at *13 (S.D.N.Y. Mar. 25, 2019) (rejecting defendants' argument that plaintiff could not claim that her termination was due to discrimination because plaintiff was eligible for reinstatement under Section 71 of the Civil Service Law because “at the pleading stage, Plaintiff does not have an obligation to anticipate and disprove .. the employer's proffer of a legitimate non-discriminatory basis for its decision”) (internal quotation marks and citation omitted).
In sum, Plaintiff has sufficiently alleged that he provided the NYCTA with notice of his desire for a reasonable accommodation, that such an accommodation existed, and that the NYCTA acted in bad faith by failing to contact him at his current mailing address. Plaintiff, however, has not adequately alleged that his shoulder injury constituted a “disability” of the type covered under the ADA and the Rehabilitation Act. I therefore recommend that Defendants' motion to dismiss the ADA and Rehabilitation Act claims be granted. I further recommend that Plaintiff be afforded leave to amend.
Leave to amend a complaint should be freely given “when justice so requires.” Fed.R.Civ.P. 15(a)(2). “[I]t is within the sound discretion of the district court to grant or deny leave to amend.” McCarthy v. Dun & Broadstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). The Second Circuit has indicated that a “court should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 22 F.3d 99, 112 (2d Cir. 2000); see also Baltazar v. Goldfarb Prop., Inc., No. 22-CV-7363 (LTS), 2023 WL 2186326, at *5 (S.D.N.Y. Feb. 22, 2023) (“District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile.”). Although Plaintiff has previously filed three complaints in this matter, none were filed with the benefit of a court decision outlining the deficiencies in his pleading. Additionally, Plaintiff's brief, prepared with the help of the New York Legal Assistance Group's Pro Se Legal Clinic, cured many deficiencies from his previous complaints. Finally, Plaintiff may be able to allege facts to state a valid ADA and Rehabilitation Act claim. For these reasons, I recommend that Plaintiff be granted leave to replead his failure-to-accommodate claim under the ADA and the Rehabilitation Act.
If leave is granted, Plaintiff should be directed to explain how his shoulder injury affects his everyday activities, focusing on how that injury has caused ongoing harm or limitations on a major life activity. See Shine, 2020 WL 5604048, at *6 (directing plaintiff with torn ligaments and shoulder pain to, in any subsequent amendment, “provide more detailed factual allegations regarding how, if at all, her torn ligaments and shoulder pain substantially limit her ability to lift, work or engage in other major life activities”); Vale v. Great Neck Water Pollution Control Dist., 80 F.Supp.3d 426, 436 (E.D.N.Y. 2015) (finding that an individual required to wear a wrist brace “for approximately one year” which affected “one or more of her major life activities” stated an ADA claim). Plaintiff should also be instructed to include additional details about the contents of the monthly medical reports that were sent by his doctor to the NYCTA. See Pl.'s Opp. Br. at 4. Further, as any amended complaint “will completely replace, not supplement,” the complaints on the docket, any facts or claims which Plaintiff wants to include from his various complaints as well as his brief “must be repeated” in any amended complaint. Baltazar, 2023 WL 2186326, at *5.
Finally, to the extent Plaintiff seeks injunctive relief through his motion to “implement” the ADA, see ECF No. 53, I recommend that the relief be denied because Plaintiff has not plausibly alleged a violation of the ADA. To obtain injunctive relief, Plaintiff must show “either (i) a likelihood of success on the merits or (ii) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor.” Tom Doherty Assoc., Inc. v. Saban Ent., Inc., 60 F.3d 27, 33 (2d Cir. 1995). For the reasons discussed, Plaintiff has not shown a likelihood of success on the merits of his ADA claim. As such, Plaintiff has not shown an entitlement to injunctive relief and I thus recommend that his motion at ECF No. 53 be denied.
B. Plaintiff has stated a claim under the New York State Human Rights Law and the New York City Human Rights Law.
Plaintiff also brings “reasonable accommodation” claims under the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”), which Defendants have also moved to dismiss. Pl.'s Opp. Br. at 17-18. Given the more liberal definition of “disability” under the state and city laws, Plaintiff has plausibly alleged violations of the NYSHRL and NYCHRL.
To allege a violation of the NYSHRL and NYCHRL, an employee must allege that “(1) he is a person with a disability under the meaning of [the statutes]; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, [the employee] could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.” Berger v. N.Y.C. Police Dep't, 304 F.Supp.3d 360, 368-69 (S.D.N.Y. 2018) (quoting Noll v. Int'l Bus. Machs. Corp., 787 F.3d 89, 94 (2d Cir. 2015)). Courts in this Circuit “apply a similar analysis to reasonable accommodation claims” brought under the NYSHRL and the NYCHRL as those brought under the ADA or the Rehabilitation Act. Liboy v. Russ, No. 22-CV-10334 (VM), 2023 WL 6386889, at *10 (S.D.N.Y. Sept. 29, 2023).
However, one key difference between the ADA and the NYSHRL and NYCHRL is that both the state and city laws define “disability” more broadly than the ADA. See Barr v. N.Y.C. Transit Auth., No. 99-CV-7927 (FB), 2002 WL 257823, at *8 (E.D.N.Y. Feb. 20, 2002) (“The Second Circuit has held that the standard for disability under the NYSHRL is broader than under the ADA” and the “standard for disability under [the] NYCHRL is at least as expansive as the standard under NYSHRL.”). Although “a temporary impairment, standing alone is not a disability” under the ADA, it could suffice to plead a disability under the NYSHRL because that law provides that “[a]ny ‘medically diagnosable impairment' is sufficient.” Attis v. Solow Realty Dev. Co., 522 F.Supp.2d 623, 631-32 (S.D.N.Y. 2007) (quotation omitted); see also Parker v. Israel Discount Bank of N.Y., Inc., No. 21-CV-7196 (VEC), 2024 WL 455220, at *10 (S.D.N.Y. Feb. 6, 2024) (finding that a temporary finger sprain which did not qualify as a disability under the ADA was “a disability under [the NYSHRL] because it is a physical impairment demonstrable by medically accepted clinical diagnostic techniques”); Fernandez v. Windmill Distrib. Co., 159 F.Supp.3d 351, 366 (S.D.N.Y. 2016) (plaintiff with back injury of uncertain duration stated a reasonable-accommodation claim under the NYSHRL). Likewise, a temporary injury may also qualify as a disability under the NYCHRL. Nazario v. Promed Personnel Serv. NY Inc., No. 15-CV-6989 (LGS), 2017 WL 2664202, at *6, *9 (S.D.N.Y. June 19, 2017) (finding that a temporary neck injury qualified as a disability under the NYCHRL because “[t]he NYCHRL affords broader protections than the ADA, and dismissal of a Plaintiff's ADA disability discrimination claim does not necessarily require dismissal of a plaintiff's identical NYCHRL claim”).
As discussed, Plaintiff alleges that he had a shoulder injury which “significantly restricted his range of motion and his ability to lift, push, and pull objects greater than ten pounds.” Pl.'s Opp. Br. at 4. He further alleges that he was unable to perform repetitive movements involving this shoulder. Id. Plaintiff has therefore cognizably alleged that his injury “impaired” normal bodily function, which is sufficient to allege a disability under the NYSHRL and NYCHRL. See Solow Realty, 522 F.Supp.2d at 632; see also Parker, 2024 WL 455220, at *10 (finding the existence of a disability from a temporary impairment); Nazario, 2017 WL 2664202, at *9 (finding that a temporary neck injury qualified as a disability under the NYCHRL).
Moreover, Plaintiff has adequately alleged the other elements of a claim under the NYSHRL and NYCHRL, which mirror the elements of an ADA claim. See Parker, 2024 WL 455220, at *10 (“The four elements of a claim of disability discrimination under the NYSHRL are the same as the elements of an ADA claim.”); Sternberg v. N.Y.C. Health & Hosps. Corp., 191 F.Supp.3d 303, 308 (S.D.N.Y. 2016) (“Claims of intentional discrimination on the basis of disability under NYSHRL are identical to such claims under the ADA.”); Kinneary v. City of New York, 601 F.3d 151, 158 (2d Cir. 2010) (concluding that claims under the NYCHRL require proof of the same elements as an ADA claim). As such, Plaintiff has plausibly alleged a reasonable accommodation claim under the NYSHRL and NYCHRL for the reasons discussed with regards to his ADA claim. Because I recommend that Plaintiff be afforded leave to amend his ADA and Rehabilitation Act claims, if leave is granted Plaintiff should be instructed to restate his NYSHRL and NYCHRL claims in his amended complaint.
C. Plaintiff has failed to state a claim for defamation against the NYCTA or Jackson.
Plaintiff also asserts a “defamation by implication” claim against the NYCTA and Jackson, arguing that flyers with his photograph put up around the NYCTA facilities conveyed a “defamatory inference that Plaintiff is a criminal trespasser.” Pl.'s Opp. Br. at 18-19. Defendants argue that these flyers are “notices explaining that former employees are not permitted in restricted areas” and, in any case, Plaintiff has failed to allege defamation per se or special damages, either of which are “essential elements” of a defamation claim. Defs.' Br. at 10-12. For the reasons discussed below, Plaintiff has failed to plausibly allege a defamation-by-implication claim. I thus recommend that this claim be dismissed with leave to amend.
To plead a claim for defamation under New York law, a plaintiff must allege that the defendant “made a false statement, published that statement to a third party without privilege, with fault measured by at least a negligence standard, and the statement caused special damages or constituted defamation per se.” Partridge v. New York, 173 A.D.3d 86, 90 (3d Dep't 2019) (quotation omitted). As to the first element, “[e]ven where a statement is literally true, it may still be actionable if it implies a defamatory meaning.” Henry v. Fox News Network LLC, 629 F.Supp.3d 136, 145 (S.D.N.Y 2022). Such claims for “defamation by implication” are “premised not on direct statements but on false suggestions, impressions, and implications arising from otherwise truthful statements.” Kesner v. Dow Jones & Co., 515 F.Supp.3d 149, 170 (S.D.N.Y. 2021) (quotation omitted). However, “to survive a motion to dismiss a claim for defamation by implication where the factual statements at issue are substantially true, a plaintiff must make a rigorous showing that the language of the communication as a whole can reasonably be read both to impart a defamatory inference and to affirmatively suggest that the author intended or endorsed that inference.” Id. (quoting Stepanov v. Dow Jones & Co., 120 A.D.3d 28, 37-38 (3d Dept. 2014)). This is an objective standard that asks “whether the plain language of the communication itself suggests that an inference was intended or endorsed.” Satanic Temple, Inc. v. Newsweek Mag. LLC, 661 F.Supp.3d 159, 170 (S.D.N.Y. 2023).
A plaintiff asserting a defamation claim must also allege that the challenged conduct either caused special damages or constituted defamation per se. Thai v. Cayre Grp., Ltd., 726 F.Supp.2d 323, 330 (S.D.N.Y. 2010). To plead special damages, a plaintiff must allege “the loss of something having economic or pecuniary value which must flow directly from the injury to reputation caused by the defamation.” Thorsen v. Sons of Norway, 996 F.Supp.2d 143, 164 (E.D.N.Y. 2014). Any such damages “must be fully and accurately stated with sufficient particularity to identify actual losses.” Gucci America, Inc. v. Duty Free Apparel, Ltd., 277 F.Supp.2d 269, 277 (S.D.N.Y. 2003). “To satisfy the special damages requirement, a plaintiff must set forth an itemized account of [their] losses; round figures or a general allegation of a dollar amount as special damages will not suffice.” Thai, 726 F.Supp.2d at 336 n.10 (quotation omitted).
A plaintiff may avoid pleading special damages where they can show that the statement at issue is defamatory per se. Zherka v. Amicone, 634 F.3d 642, 645 n.6 (2d Cir. 2011). A statement is defamatory per se if it “(i) charg[es] plaintiff with a serious crime; (ii) [tends] to injure another in his or her trade, business or profession; (iii) [states] that plaintiff has a loathsome disease; or (iv) imput[es] unchastity to a woman.” Id. To “injure another in his or her trade, business or profession,” the statement must “be targeted at the specific standards of performance relevant to the plaintiff's business and must impute conduct that is ‘of a kind incompatible with the proper conduct of the business, trade, profession or office itself.'” Pure Power Boot Camp Inc. v. Warrior Fitness Boot Camp, LLC, 813 F.Supp.2d 489, 550 (S.D.N.Y. 2011); see, e.g., Travelex Currency Servs., Inc. v. Puente Enters., Inc., No. 18-CV-1736 (ER), 2019 WL 1259102, at *9 (S.D.N.Y. Mar. 19, 2019) (plaintiff sufficiently alleged defamation per se based on statements which “impugn[ed] the basic integrity and creditworthiness” of plaintiff's business by accusing plaintiff of “insurance fraud and other wrongful acts”).
Even if the Court assumes that the flyer raises a defamatory inference, Plaintiff has not pled sufficient facts from which to plausibly infer that the flyers were defamatory per se or caused Plaintiff special damages. Beginning with special damages, Plaintiff's sole allegation regarding damages is an assertion that the flyers “harmed [his] reputation and credibility as a member of [the] TWU retiree committee.” Pl.'s Opp. Br. at 18-19. Plaintiff does not identify an actual economic loss, let alone one with the particularity required to plead the existence of special damages. Thai, 726 F.Supp.2d at 330 (“Special damages ‘must be fully and accurately stated, with sufficient particularity to identify actual losses.'”). Plaintiff's “vague allegation of reputational harm . . . [is] not sufficiently particular to establish special damages.” Marom v. Pierot, No. 18-CV-12094 (VF) (JCM), 2020 WL 6572509, at *8 n.6 (S.D.N.Y. Aug. 20, 2020), R&R adopted by 2020 WL 6565199 (S.D.N.Y. Nov. 9, 2020).
Additionally, the flyer does not fall into one of the four established categories for alleging defamation per se. The flyer does not impute unchastity upon a woman, it does not state that Plaintiff has a loathsome disease, and it does not charge Plaintiff with a serious crime. And to the extent that Plaintiff alleges that the flyer harmed his “reputation and credibility as a member of [the] TWU retiree committee,” that bare bones and conclusory allegation does not suffice to plausibly allege that the statement injured Plaintiff in his trade or profession. See Clemente v. Impastato, 274 A.D.2d 771, 773 (3d Dep't 2000) (explaining that for defamation and libel per se the statement must “impute[ ] incompetence, incapacity or unfitness in the performance of one's profession,” amounting “to an attack on plaintiff's professional ability” and constitutes “more than a general reflection upon [plaintiff's] character or qualities”); Aiola v. Malverne Union Free Sch. Dist., No. 15-CV-64 (ADS) (AYS), 2017 WL 3917018, at *12 (E.D.N.Y. 2015) (explaining that an individual's “generalized accusation” that the plaintiff was terminated from a prior position “did not at all bear upon his fitness to be [a] Head Custodian” at a high school); Pure Power, 813 F.Supp.2d at 551 (defamatory statements attributed to defendant did not “specifically reflect upon her competence as a fitness instructor”).
In short, I recommend that Plaintiff's defamation claim against the NYCTA be dismissed because Plaintiff has not adequately alleged special damages or defamation per se. As it concerns Jackson, Plaintiff has not alleged any facts from which to plausibly infer that Jackson played any role in the creation or dissemination of the flyer. I thus recommend that the claim as to her also be dismissed. Although it is not apparent that Plaintiff will be able to allege a valid defamation claim against either defendant, I nevertheless recommend that he be afforded leave to amend. As discussed, leave to amend should be freely given particularly where Plaintiff is proceeding pro se, the deadline for amendment under Rule 15 has not passed, and Plaintiff has not previously been afforded an opportunity to amend with the benefit of a ruling from the Court. See Fox News Network LLC, 629 F.Supp.3d at 153-54 (granting leave to amend complaint despite doubts about plaintiff's ability to cure deficiencies in pleading due to the permissive standard of Rule 15 and the fact that plaintiff did not have prior opportunity to amend with a court decision). If leave to amend is granted, Plaintiff should be directed to add allegations concerning the economic or pecuniary loss he sustained as a result of the flyer's dissemination. Plaintiff should also be directed to add factual allegations specific to Jackson and the role she played in the creation or dissemination of the flyer.
D. Plaintiff has failed to state a claim for false arrest against Jackson and the NYCTA.
Plaintiff also asserts a claim for false arrest against Jackson and the NYCTA. Pl.'s Opp. Br. at 19. He alleges that Jackson knew that Plaintiff was a retired employee but “maliciously and falsely” stated to police that he was a “rogue terminated employee” in order to have him arrested. Id. As explained below, Plaintiff has failed to plausibly allege a false-arrest claim against either Jackson or the NYCTA.
A false-arrest claim brought pursuant to 18 U.S.C. § 1983 “‘incorporates the elements of the state law where the arrest took place-here, New York.'” Toussaint v. Cnty. of Westchester, 615 F.Supp.3d 215, 224 (S.D.N.Y. 2022) (quoting Johnson v. City of New York, No. 18-CV-6256 (RA), 2020 WL 2732068, at *3 (S.D.N.Y. May 26, 2020)); see also Jaegly v. Couch, 439 F.3d 149, 151-52 (2d Cir. 2006) (considering New York law in analyzing Section 1983 claims for unconstitutional false arrest); Weyant v. Okst, 101 F.3d 845, 852 (2d. Cir. 1996) (“A. § 1983 claim for false arrest . . . is substantially the same as a claim for false arrest under New York law.”). To state a claim for false arrest under New York law, a plaintiff must plead that “(1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement[,] and (4) the confinement was not otherwise privileged.” Jocks v. Tavernier, 316 F.3d 128, 134-35 (2d Cir. 2003) (internal quotation marks omitted).
Ordinarily, where a private party provides a police officer with false information and the officer arrests an individual based on the false information, the private party is not liable for false arrest. Vlach v. Staiano, 604 Fed.Appx. 77, 78-79 (2d Cir. 2015) (“When police independently act to arrest a suspect on information provided by a party, that party is not liable for false imprisonment [i.e. arrest]-even if the information provided is later found to be erroneous.”) (quoting King v. Crossland Sav. Bank, 111 F.3d 251, 257 (2d Cir. 1997)) (internal quotation marks omitted). However, a private party may be held liable for false arrest “if the complainant intentionally provided false information to instigate an arrest by law enforcement officials or had no reasonable basis for the report.” Rodriguez v. Sky, 605 W 42 St Owner LLC, No. 23-CV-8034 (LTS), 2023 WL 7305147, at *4 (S.D.N.Y. Nov. 6, 2023) (emphasis in original). “In cases where a civilian complainant ‘had a reasonable basis' for the belief that a person was committing a crime, this basis suffices to defeat a false arrest claim, ‘even if a civilian complainant is ultimately incorrect in his belief as to whether a person is committing a crime.” Id. (quoting TADCO Const. Corp. v. Dormitory Auth. of New York, 700 F.Supp.2d 253, 255 (E.D.N.Y. 2010)).
As an initial matter, Plaintiff has failed to allege that Jackson provided any false information to police. Plaintiff alleges that Jackson called a police officer she was “acquainted with” to have Plaintiff removed from “certain [private] NYCT[A] facilities, including subway bathrooms.” Pl.'s Opp. Br. at 6. He further alleges that Jackson “falsely” told the officer that Plaintiff was a “rogue terminated employee,” resulting in Plaintiff's arrest for trespassing. Id. Yet, Jackson's statement that Plaintiff was a “terminated employee” was true, and Plaintiff does not point to any other statement by Jackson to the officer. Id. at 5-6. Absent any allegation that plausibly suggests that Jackson provided the police officer with false information, Plaintiff has not pled that Jackson intentionally provided false information to instigate his arrest, as is required to plead a viable false-arrest claim against a private citizen. Moreover, as it relates to the NYCTA, Plaintiff has no allegation to support an inference that the NYCTA played any role in Plaintiff's arrest.
Defendants do not dispute (see Defs. Reply Br. at 7-8) that Plaintiff was conscious of his confinement, that he did not consent to that confinement, and that no privilege otherwise applied to that confinement. Ringel v. N.Y.C. Dept. of Educ., 616 F.Supp.3d 205, 245 (E.D.N.Y. 2022).
I recommend that Plaintiff's false-arrest claim against Jackson and the NYCTA be dismissed with leave to amend. Should Plaintiff be afforded leave to amend, Plaintiff should be directed to add additional allegations concerning the NYCTA's role in his arrest and allegations supporting an inference that Jackson intentionally provided false information to the police.
E. Plaintiff's other claims were abandoned and should be dismissed with prejudice.
Plaintiff does not contest the dismissal of all employment-discrimination claims arising under federal and state law brought against all of the individual defendants, including those named in Plaintiff's Second Amended Complaint. Pl.'s Opp. Br. at 7. He further does not oppose dismissal of his false arrest and defamation claims against all of the individual defendants, except Jackson. Id. Nor does Plaintiff oppose dismissal of his claims under 18 U.S.C. § 1503, 18 U.S.C. § 1513(e), and 15 U.S.C. § 1692. Id. I thus recommend dismissal of all claims against Helen Smart, Maia Collington, and Felicia Blakes, Tomika Neal, Dorothy Reveria, Sheila Hudson, Osmond Charles, Tanya Forester, Victor Rodriguez, Myrthil Vladimir, Thomas Simmons, and “D. Peterson,” and all employment-discrimination claims against Germaine Jackson. If Plaintiff is afforded leave to amend, he should not be permitted to replead these claims against Smart, Collington, Blakes, Jackson, Neal, Reveria, Hudson, Charles, Forester, Rodriguez, Vladimir, Simmons, and Peterson.
Plaintiff's complaints also assert a retaliation claim under the ADA, discrimination and retaliation claims under the ADEA, and discrimination and retaliation claims under Title VII, all against the NYCTA and the individual defendants. Compl. at 4; Second Am. Compl. at 2. Further, Plaintiff in his Second Amended Complaint seeks a remedy for occupational injuries to his “left shoulder, right shoulder.” Second Am. Compl. at 9. Defendants move to dismiss these claims, arguing that Plaintiff has pled no facts to support them. Defendants also argue that the exclusive remedy for any personal injuries suffered while at work is the Worker's Compensation law. Defs.' Br. at 13. Plaintiff's brief, prepared with the help of the Pro Bono Legal Assistance Clinic, fails to address or respond to Defendants' arguments. See Pl.'s Opp. Br. at 7.
A plaintiff is deemed to have abandoned a claim where they fail to respond to a defendant's argument for dismissal of that claim. See, e.g., Hauschild v. U.S. Marshals Serv., No. 21-CV-7580 (CS), 2023 WL 2413934, at *12 (S.D.N.Y. Mar. 8, 2023) (“At the motion to dismiss stage, where review is limited to the pleadings, a plaintiff abandons a claim by failing to address the defendant's arguments in support of dismissing that claim.”); Felix v. City of New York, 344 F.Supp.3d 644, 654 (S.D.N.Y. 2018) (“Courts may, and generally will, deem a claim abandoned when a plaintiff fails to respond to a defendant's argument that the claim should be dismissed.”) (quotation omitted); Bonilla v. Smithfield Assocs. LLC, No. 09-CV-1549 (DC), 2009 WL 4457304, at *4 (S.D.N.Y. Dec. 4, 2009) (concluding that claims were abandoned where defendants raised three arguments for dismissal and plaintiff responded to only one).
In his opposition brief, Plaintiff does not respond to any of the arguments raised by Defendants for dismissal of these claims. See Pl.'s Opp. Br. at 7. Although Plaintiff states his bare opposition to “dismissal of his employment discrimination claims against the NYCT[A],” he does not refute any of the specific grounds for dismissal. Id. As such, Plaintiff should be deemed to have abandoned these claims, and dismissal on this basis with prejudice is appropriate.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Defendants' motion to dismiss be GRANTED as to Plaintiff's claims under the ADEA, Title VII, his retaliation claims under the ADA, and any personal injury claims. As to Plaintiff's claims under the ADA, the Rehabilitation Act, for defamation and for false arrest, I recommend that those counts be dismissed without prejudice and that Plaintiffs be granted leave to amend. As to Plaintiff's claims under the NYSHRL and the NYCHRL, I respectfully recommend that Plaintiff be allowed to replead those claims in any amended complaint. Finally, I recommend that Plaintiff's Motion for Miscellaneous Relief at ECF No. 53 also 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 fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), 6(b), 6(d).
A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the Honorable Dale E. Ho. 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 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72; Fed. R. Civ. P. 6(a), 6(b), 6(d); Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).