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Napoletano v. Damianos Realty Group

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


April 18, 2007

DON NAPOLETANO, PLAINTIFF,
v.
DAMIANOS REALTY GROUP, A. K. A. BONVI REALTY, DEFENDANT.

The opinion of the court was delivered by: Joseph F. Bianco, District Judge

MEMORANDUM AND ORDER

I. BACKGROUND

A. The Facts

Plaintiff Don Napoletano brings this employment discrimination case against his former employer, Damianos Realty Group, The following facts are taken from the a.k.a. Bonvi Realty. Plaintiff alleges claims amended complaint and are not findings of under the Age Discrimination in Employment fact by the Court, but rather are assumed to be Act of 1967, as amended, 29 U.S.C. § 621 et true for purposes of deciding this motion to seq. (the "ADEA"), and the New York State dismiss.

Human Rights Law, N.Y. Exec. Law § 296(1)(a), based on constructive discharge. Plaintiff was employed as a Defendant moves to dismiss the amended Superintendent by defendant for a period of complaint pursuant to Fed. R. Civ. P. 12(b)(6). nearly nineteen years from August 1986 to For the reasons that follow, defendant's May 16, 2005. (Am. Comp. ¶¶ 7, 8.) Plaintiff motion is denied in part and granted in part. was fifty-nine years-old when he was allegedly constructively discharged on May 16, 2005. (Id. ¶ 29.) On several occasions during his employment, plaintiff requested a promotion to the position of Property Manager. Chris Damianos ("Damianos"), an Plaintiff tendered his resignation and owner and Vice-President of defendant, did terminated his employment on May 16, 2005. not grant plaintiff's requests. Damianos told (Id. ¶ 7.) plaintiff that another individual, sixty-five year-old Ron Johnson, was in line for the B. The Instant Action position but was "an old man." (Id. ¶¶ 10, 11.) In January or February 2005, defendant Plaintiff contends that his resignation was hired Peter Nichols ("Nichols") for the the result of a constructive discharge. position. (Id. ¶ 12.) According to plaintiff, Plaintiff filed complaints with the State Nichols substantially changed the terms, Division of Human Rights and the United conditions, and requirements of plaintiff's job States Equal Employment Opportunity by, among other things, requiring plaintiff to Commission (the "EEOC") on January 6, keep an hourly log and carry a two-way radio 2003. (Id. ¶ 2.) The EEOC issued plaintiff a with him on a twenty-four-hour basis. (Id. ¶¶ "Right-to-Sue" letter on May 10, 2006. 12, 13.) Plaintiff was the only Superintendent Plaintiff brought suit in forma pauperis in this subject to these changes. (Id. ¶ 15.) Court on August 4, 2006. Defendant moved to dismiss on October 4, 2006. Plaintiff According to the amended complaint, retained counsel on November 8, 2006, and Nichols "screamed" at plaintiff and used filed a response to the initial motion to profanity, including when plaintiff confronted dismiss on December 6, 2006. Oral argument him about the new policies. (Id. ¶¶ 16, 20.) on the motion was heard on February 5, 2007, Once, Nichols berated plaintiff in front of a and this Court granted plaintiff leave to new tenant, causing plaintiff embarrassment amend his complaint. and humiliation. (Id. ¶¶ 17-19.) Plaintiff sought a meeting with Damianos to discuss The amended complaint was filed on the problem, and Damianos insisted that February 20, 2007. By letter dated February Nichols be present at any meeting. (Id. ¶¶ 22, 23, 2007, defendant moved by letter to 23.) dismiss the amended complaint, renewing arguments made in the initial motion and Patricia Bono ("Bono"), Damianos's including an argument that plaintiff's claim secretary, told plaintiff that an advertisement under the New York Human Rights Law seeking a replacement for his position would should be dismissed for lack of jurisdiction. be placed in Newsday. (Id. ¶ 24.) Bono Plaintiff filed a reply by letter dated February advised plaintiff that "all was not lost" if he 28, 2007. could get along with Nichols. (Id. ¶ 25.)

II. Standard of Review

Plaintiff replied that the problem between the two was harassment, not merely a personality conflict. (Id. ¶ 26.) In another conversation, In reviewing a motion to dismiss pursuant John Finn ("Finn"), who served as to Fed. R. Civ. P. 12(b)(6) for failure to state Damianos's "right hand man," told plaintiff a claim upon which relief can be granted, the that plaintiff did not "have long to go," which court must accept the factual allegations set plaintiff took as a reference to his age and to forth in the complaint as true, and draw all the age of the new Property Manager. (Id. ¶ reasonable inferences in favor of the plaintiff. 27.) See Cleveland v. Caplaw Enterp., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford 128, 137-38 (2d Cir. 2003); see Spence v. Md. Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. Cas. Co., 995 F.2d 1147, 1155 (2d Cir. 1993) 2005). Dismissal is warranted only if "'it (applying these factors specifically to claims appears beyond doubt that the plaintiff can of age discrimination). prove no set of facts in support of his claim which would entitle him to relief.'" Flores v. Constructive discharge occurs in the S. Peru Copper Corp., 343 F.3d 140, 148 (2d absence of a "discrete, identifiable act," when Cir. 2003) (quoting Conley v. Gibson, 355 an employer, "'rather than directly U.S. 41, 45-46 (1957)). The appropriate discharging an individual, intentionally inquiry is "not whether a plaintiff will creates an intolerable atmosphere that forces ultimately prevail, but whether the claimant is an employee to quit voluntarily.'" Flaherty v. entitled to offer evidence to support the Metromail Corp., 235 F.3d 133, 138 (2d Cir. claims." Twombly v. Bell Atl. Corp.,425 F.3d 2000) (quoting Chertkova v. Conn. Gen. Life 99, 106 (2d Cir. 2005). Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996)); see also Morris v. Schroder Cap. Mgmt. Int'l, -- F.3d --, 2007 WL 155287, at *2 (2d Cir. Jan. 11, 2007) (stating that constructive discharge Defendant seeks to dismiss the claims in "occurs 'when the employer, rather than the amended complaint on two separate acting directly, deliberately makes an grounds. First, defendant argues that plaintiff employee's working conditions so intolerable has not properly stated a claim for age that the employee is forced into an discrimination based upon a constructive involuntary resignation'") (quoting Pena v. discharge. Second, defendant asserts that, Brattleboro Retreat, 702 F.2d 322, 325 (2d under N.Y. Exec. Law § 297(9), this Court Cir. 1983)). Working conditions are has no subject matter jurisdiction over sufficiently "intolerable" when they are "so plaintiff's claim under the New York Human difficult or unpleasant that a reasonable Rights Law because the claim is still being person in the employee's shoes would have adjudicated in a state administrative felt compelled to resign." Lopez v. S.B. proceeding. The Court will address these Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. issues in turn. 1987) (quoting Pena, 702 F.2d at 325) (internal citations omitted). When such conditions are present, the court will treat the plaintiff's voluntary resignation "as if the Plaintiff claims that he was constructively employer had actually discharged the discharged by defendant based upon his age. employee" for the purpose of establishing a The Second Circuit requires four elements to prima facie case of discrimination. Lopez, establish a prima facie case of age 831 F.2d at 1188 (applying the doctrine of discrimination: (1) the plaintiff was within the constructive discharge to a discrimination protected age group; (2) the plaintiff was claim filed under 42 U.S.C. § 1981). qualified for the position; (3) the employer engaged in an adverse employment action; Defendant argues that the claim must be and (4) the adverse action occurred under dismissed because plaintiff's complaint does "circumstances giving rise to an inference of not sufficiently establish a prima facie case of discrimination." Terry v. Ashcroft, 336 F.3d discrimination. (Def.'s Mem. at 5.)

III. Discussion

A. Constructive Discharge

Specifically, defendant asserts that, in controlling standard for survival of a motion establishing a prima facie case, plaintiff's to dismiss lies not in McDonnell Douglas, but claim is "subject to the McDonnell Douglas in Rule 8(a) of the Federal Rules of Civil burden shifting framework." (Def.'s Mem. at Procedure, which requires "a short and plain 5.) statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P.

However, defendant's position has been 8(a)(2); see Swierkiewicz,534 U.S. at 513 specifically rejected by the United States (complaints in discrimination cases "must Supreme Court in Swierkiewicz v. Sorema, satisfy only the simple requirements of Rule N.A.,534 U.S. 506 (2002). In Swierkiewicz, 8(a)"). the Supreme Court rejected the concept that there is a heightened pleading standard in The Second Circuit has emphasized that discrimination cases and, thus, held that the the Federal Rules "set forth a pleading survival of a complaint in an employment standard under which a plaintiff is required discrimination case does not rest on whether only to give a defendant fair notice of what it contains specific facts establishing a prima the claim is and the grounds upon which it facie case under McDonnell Douglas. rests." Leibowitz, 445 F.3d at 591. Such a Swierkiewicz, 534 U.S. at 510 ("The prima pleading "will enable the adverse party to facie case under McDonnell Douglas . . . is an answer and prepare for trial, allow the evidentiary standard, not a pleading application of res judicata, and identify the requirement."); see also Williams v. N.Y. City nature of the case so it may be assigned the Hous. Authority, 458 F.3d 67, 71-72 (2d Cir. proper form of trial." Simmons v. Abruzzo, 49 2006) (applying Swierkiewicz holding to F.3d 83, 86 (2d Cir. 1995) (internal quotation retaliation claims); Leibowitz v. Cornell omitted). A clear statement from the plaintiff Univ.,445 F.3d 586, 591 (2d Cir. 2006) alleging discrimination by the defendant is (applying Swierkiewicz holding to sufficient to achieve these goals. See Ferro v. discrimination claims under Title VII and R. Exp. Agency, Inc., 296 F.2d 847, 851 (2d ADEA claims); Coffey v. Cushman & Cir. 1961) (holding that a complaint stating Wakefield,No. 01-CV-9447 (JGK), 2002 WL "that defendants have in a willful and 1610913, at *6 (S.D.N.Y. July 22, 2002) malicious manner discriminated against (applying Swierkiewicz and rejecting motion plaintiff" provided sufficient notice of the to dismiss a constructive discharge claim discrimination claim). under the ADEA).

Plaintiff has made a Sufficiently Clear

The Supreme Court has recently reiterated statement in the amended complaint to satisfy that "courts should generally not depart from Rule 8(a). In particular, plaintiff asserts the the usual practice under the Federal Rules [of following: (1) in early 2005, Peter Nichols Civil Procedure]," and explained that was hired as the Property Manager, which was heightened pleading requirements can only be a position for which defendant refused to established through the legislative process. consider plaintiff (Am. Comp. ¶ 10); (2) after Jones v. Bock, -- U.S. --, 127 S.Ct. 910, 918 Nichols arrived, plaintiff's terms and (2007). No such heightened pleading conditions of employment were immediately requirement for discrimination claims exists changed in such a way as to constitute a in Title VII or the ADEA. Therefore, the constructive discharge (Id. ¶¶ 13-23); and (3) the constructive discharge was because of his satisfy the elements of a discriminatory age (plaintiff was fifty-nine years-old at the constructive discharge claim. That "'it may time of the alleged constructive discharge). appear on the face of the pleadings that a (Id. ¶¶ 28-29.) recovery is very remote and unlikely . . . is not the test.'" Swierkiewicz, 534 U.S. at 515 In support of this claim, plaintiff provided (internal quotation omitted) (quoting Scheuer some alleged instances of how the terms and v. Rhodes,416 U.S. 232, 236 (1974) ("When conditions of his employment and his a federal court reviews the sufficiency of a responsibilities changed in early 2005 when complaint, before the reception of any Nichols became the Property Manager: (1) evidence either by affidavit or admissions, its plaintiff was required to keep an hourly log of task is necessarily a limited one. The issue is every activity he performed each day; (2) not whether a plaintiff will ultimately prevail plaintiff was required to carry a two-way but whether the claimant is entitled to offer radio 24 hours a day, seven days a week; (3) evidence to support the claims.")). Nichols screamed at plaintiff and used profanity; and (4) Damianos refused to meet Defendant has not made any claim, in with plaintiff alone in person to discuss this either the Memorandum of Law or the allegedly discriminatory conduct, but instead February 23, 2007 Letter, that plaintiff failed was going to require Nichols to be present. to give sufficient notice of his claim against (Am. Comp. ¶¶ 13-23.) In addition, the Damianos Realty. Instead, defendant argues amended complaint alleges constructive the merits of plaintiff's claim. The fact that discharge based on plaintiff being told by defendant was able to argue the merits is Damianos's secretary that an advertisement evidence that defendant has had sufficient had been placed in the newspaper to replace notice, and that plaintiff's complaint achieves plaintiff in his position, but that "all was not the ends the Second Circuit described in lost" if plaintiff could learn to get along with Simmons. Simmons, 49 F.3d at 87 (holding Nichols. (Id. ¶¶ 24-25.) Furthermore, that a movant's failure to argue non-plaintiff alleges that Damianos's right-hand compliance with Rule 8 was evidence that the man told plaintiff that he does not "have long plaintiff's complaint contained sufficient to go." (Id. ¶ 27.) notice); see also Wynder v. McMahon, 360 F.3d 73, 80 (2d Cir. 2004) (stating that the Moreover, in support of his claim that the movant's failure to argue a lack of notice was constructive discharge was based on age, evidence that sufficient notice was given plaintiff sets forth certain allegations in the through the pleadings). Thus, although amended complaint, including: (1) Damianos defendant may believe that there is a lack of told plaintiff he would refuse to consider him evidence to support plaintiff's claim of for the Property Manager position (Am. constructive discharge, "[t]his simplified Comp. ¶ 10); and (2) "that Chris Damianos notice pleading standard [under Rule 8(a)] told plaintiff that Ron Johnson, a 65 year old relies on liberal discovery rules and summary employee was in line for that position, but that judgment motions to define disputed facts and he was an old man." (Id. ¶ 11.) issues and to dispose of unmeritorious claims." Swierkiewicz,534 U.S. at 512. Defendant claims that it is doubtful, based Thus, defendant will have a full opportunity to upon these allegations, that plaintiff would raise these arguments should it move for summary judgment at the conclusion of discrimination. Promisel, 43 F.2d at 257. discovery.

N.Y. Exec. Law § 297(9) states in relevant In short, plaintiff's allegations are part: sufficient to satisfy Rule 8 and survive a motion to dismiss. The Court cannot Any person claiming to be aggrieved conclude, assuming the facts to be true and by an unlawful discriminatory practice drawing all inferences in plaintiff's favor, that shall have a cause of action in any "'it appears beyond doubt that the plaintiff court of appropriate jurisdiction for can prove no set of facts in support of his damages, . . . unless such person had claim which would entitle him to relief.'" filed a complaint hereunder or with Flores, 343 F.3d at 148 (quoting Conley, 355 any local commission on human U.S. at 45-46). rights, or with the superintendent pursuant to the provisions of section Accordingly, defendant's motion to two hundred ninety-six-a of this dismiss plaintiff's age discrimination claim is chapter, provided that, where the denied. division has dismissed such complaint on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that Plaintiff's amended complaint states that the election of remedies is annulled, "a complaint has been filed with the State such person shall maintain all rights to Division of Human Rights within the time bring suit as if no complaint had been limited therefor for the unlawful practices filed with the division. complained of herein." (Am. Compl. ¶ 2.)

B. New York Human Rights Law Claim

Defendant asserts that, under N.Y. Exec. Law Under the New York Human Rights Law, § 297(9), this Court has no subject matter two remedies are available to plaintiffs jurisdiction over plaintiff's claim under the asserting causes of action founded upon New York Human Rights Law. discrimination: (1) a remedy through judicial review or (2) a remedy through an "If a state would not recognize a administrative action. Moodie v. Fed. Reserve plaintiff's right to bring a state claim in state Bank of N.Y., 58 F.3d 879, 882-83 (2d Cir. court, a federal court exercising pendent 1995). Under N.Y. Exec. Law § 297(9), these jurisdiction, standing in the shoes of a state remedies are mutually exclusive; that is, one court, must follow the state's jurisdictional who files a complaint with the Division of determination and not allow that claim to be Human Rights cannot then seek a remedy appended to a federal law claim in federal through the judicial process. Id. (citing Emil court." Promisel v. First Amer. Artificial v. Dewey, 406 N.E. 2d 744, 745 (N.Y. 1980)). Flowers, Inc., 943 F.2d 251, 257 (2d Cir. "[O]nce a complainant elects the 1991). As in Promisel, plaintiff asks the court administrative forum by filing a complaint to exercise pendent jurisdiction over a claim with the Division of Human Rights, a of age discrimination in spite of the fact that subsequent judicial action on the same there is an ongoing state administrative complaint is generally barred." Id. at 883 proceeding arising from the same incident of (emphasis in original) (quoting Marine Midland Bank v. N.Y. State Div. of Human Absent evidence that the Division of Rights, 551 N.E.2d 558, 559 (N.Y. 1989)). Human Rights dismissed plaintiff's claim for The sole exception to this rule is when the "administrative convenience," this Court lacks administrative agency dismisses the complaint jurisdiction over the state law claim under for "administrative convenience" under N.Y. N.Y. Exec. Law § 279(9). In the event that Exec. Law § 297(9). See Moodie 58 F.3d at plaintiff's administrative action has been, or is 883 (stating that the only exception to the dismissed in the future, for "administrative statutory bar is for decisions made for convenience," plaintiff may seek leave of this "administrative convenience"); see also Emil, Court to amend his complaint to add the state 406 N.E. 2d at 745 (holding that, absent a claim. Accordingly, plaintiff's claim under clear statement that the denial was issued due Section 296(1)(a) is dismissed without to administrative convenience, a claim cannot prejudice. be commenced under the New York Executive Law).

III. CONCLUSION

Plaintiff does not contest that a claim was For the foregoing reasons, defendant's filed with the Division of Human Rights. motion to dismiss is DENIED as to plaintiff's (Am. Compl. ¶ 2.) However, plaintiff has claim under the Age Discrimination in provided no evidence that the state agency Employment Act. Defendant's motion to dismissed the claim for "administrative dismiss is GRANTED as to plaintiff's claim convenience." Instead, plaintiff argues that under the New York Human Rights Law, and the EEOC was also speaking on behalf of the that claim is dismissed without prejudice. Division of Human Rights when it issued a "right to sue" notice on May 10, 2006. (Pl.'s Letter in Opp. to Mot. to Dismiss, February SO ORDERED. 28, 2007.) This argument is without merit.

The right to sue letter issued by the EEOC is separate from any action undertaken by the ______________________ state agency. See Moodie, 58 F.3d at 882 JOSEPH F. BIANCO (holding that the district court does not have United States District Judge subject matter jurisdiction over state claims where a right-to-sue letter was issued from the Dated: April 18, 2007 EEOC and not the Division of Human Central Islip, New York Rights); Stout v. Int'l Bus. Machines Corp., 798 F. Supp. 998, 1008 (S.D.N.Y. 1992) * * * (finding that a right to sue letter issued by the EEOC does not also grant the district court Attorney for plaintiff is Aaron M. Woskoff, jurisdiction over a state claim under N.Y. Esq, 201 Moreland Road, Suite 10, Exec. Law § 297(9)); see also Ganguly v. N.Y. Hauppauge, New York 11788. Attorney for State Dep't. of Mental Hygiene -- Dunlap defendant is David M. Cohen, Esq. of Cooper, Manhattan Psychiatric Ctr., 511 F. Supp. 420, Sapir & Cohen, P.C., 560 Broadhollow Road, 429 (S.D.N.Y. 1981) (explaining that a cause Suite 210, Melville, New York 11848. of action under N.Y. Exec. Law § 297 is separate from a claim filed with the EEOC).

20070418

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