Plaintiff fails to provide any factual allegations to support her claim that her employment was terminated because of her sex.
Instead of pleading specific facts to support her allegations, Plaintiff resorts to conclusory assertions. She merely states that the termination of her employment resulted "because of her sex, disability and/or retaliation for complaining about such discriminatory treatment . . . ." Without factual allegations to provide support, such naked conclusory assertions are insufficient to withstand this motion, and the Plaintiff's claims are dismissed.
Plaintiff sex discrimination claims alleged in her second cause of action pursuant to the New York Executive Law are likewise dismissed. The New York Executive Law prohibits an employer from discriminating against an employee on the basis of her sex. N.Y. Exec. Law § 296(1)(a). The same analysis used to determine the sufficiency of a Title VII claim applies to employment discrimination claims arising under the New York Executive Law. Song v. Ives Labs., Inc., 957 F.2d 1041, 1046 (2d Cir. 1992); Strauss v. Microsoft Corp., 814 F. Supp. 1186, 1190 n.5 (S.D.N.Y. 1993). Accordingly, the claims are dismissed.
Although the Court holds that the allegations of the Plaintiff's Complaint fail to satisfy the minimum pleading requirements, it grants Boyce leave to amend. Where a court grants a dismissal for failure to meet minimum pleading requirements, "such a dismissal ordinarily should be accompanied by leave to file an amended complaint." Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Lack of detail in specifying how the Plaintiff was discriminated against and ultimately terminated from her employment as a result of her sex is the primary deficiency of the Complaint on these two claims. Providing examples of statements and acts that involved the Plaintiff's sex, and describing how the motivating factor for the discrimination that the Plaintiff allegedly suffered was her sex, could render the Complaint sufficient to satisfy pleading requirements.
However, Plaintiff is not permitted to replead as to the Individual Defendants Bermiss and Sheehan. The Second Circuit in Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir 1995), stated, "we now hold that individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII." Tomka, 66 F.3d at 1313. Hence, all Plaintiff's Title VII claims against Defendants Sheehan and Bermiss, pursuant to Tomka, are dismissed.
In her first cause of action Plaintiff alleges retaliation in violation of Title VII, 42 U.S.C. § 2000e-3(a), and in her second cause of action she alleges retaliation in violation of the New York Executive Law Section 296(1)(e), (7).
To make a prima facie case of retaliation, the Plaintiff must show that she was engaged in a protected activity; that the employer was aware of the activity; that the employee suffered adverse employment decisions; and that there was a connection between the adverse employment decision and the protected activity. Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988); Tagare v. NYNEX Network Sys. Co., 921 F. Supp. 1146, 1153 (S.D.N.Y. 1996).
Proof of the causal connection can be shown by the proximity in time between the two factors. Manoharan, 842 F.2d at 593.
Plaintiff does not set out what activity she undertook that resulted in an adverse employment decision. Reading the Complaint in a light most favorable to the Plaintiff, the Court assumes the Plaintiff claims she was fired in retaliation for having complained about the treatment allegedly inflicted on her by Bermiss. However, the Court cannot draw the next inference that Plaintiff was complaining that she was being discriminated against because of her sex. Accordingly, the retaliation claims are dismissed.
C. Discrimination Based on Disability Pursuant to the ADA and New York Executive Law
In her second cause of action Plaintiff alleges discrimination based on an unspecified disability, in violation of the New York Executive Law.
In her fifth cause of action she alleges her termination was in violation of the American with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq.
The ADA provides the following:
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.
42 U.S.C. § 12112(a). A "covered entity" includes employers, 42 U.S.C. § 12111(2) and a "qualified individual with a disability" refers to "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8).
A plaintiff seeking relief under the ADA must establish that she is a disabled person within the meaning of the ADA, that she is otherwise qualified to perform the essential functions of her job, either with or without reasonable accommodation, and that she was terminated because of her disability. Wernick v. Federal Reserve Bank of N.Y., 91 F.3d 379, 383 (2d Cir. 1996); Lyons v. Legal Aid Soc., 68 F.3d 1512, 1515 (2d Cir. 1995).
The ADA defines "disability" as:
(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(2).
Here, reading the Complaint in the light most favorable to the Plaintiff, the Court assumes the Plaintiff is proceeding under (A). The regulations define "major life activities" as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). While "working" is deemed a "major life activity," it has been held that "an impairment that disqualifies a person from only a narrow range of jobs is not considered a substantially limiting one." Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 723 (2d Cir. 1994), cert. denied, 513 U.S. 1147, 130 L. Ed. 2d 1063, 115 S. Ct. 1095 (1995).
There are three factors to consider when determining whether an individual is "substantially limited" in a major life activity: 1) the nature and severity of the impairment; 2) the duration or expected duration of the impairment; 3) the permanent or long-term impact, or the expected permanent or long-term impact of or resulting from the impairment. 29 C.F.R. § 1630.2(j)(2). ADA interpretative guidelines further clarify the physical conditions intended to be within the scope of the Act by stating "temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities." 29 C.F.R. pt. 1630 App.
The regulations further provide:
The term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.