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Kara Lee Hewett v. Kevin Leblang

July 5, 2012


The opinion of the court was delivered by: P. Kevin Castel, District Judge:

Plaintiff Kara Lee Hewett asserts employment discrimination claims arising out of the termination of her employment with defendant Barclays Capital, Inc. ("Barclays"). Plaintiff also alleges that defendants subjected her to an unlawful strip search and violated her due process rights, and that she executed a waiver of all claims while impaired by prescription pharmaceuticals and respiratory illness.

Barclays and defendant Kevin Leblang move to dismiss plaintiff's Amended Complaint (the "Complaint") pursuant to Rule 12(b)(6), Fed. R. Civ. P. They argue that the plaintiff, who is pro se, agreed in May 2011 to release all claims against the defendants in exchange for a payment of $75,000, and that this release bars her present action against them. They also contend that plaintiff fails to plausibly allege any claim for liability. Defendant Martin Baskin has separately moved to dismiss under Rule 12(b)(6).


For the reasons explained, the plaintiff is bound by the settlement agreements executed in May 2011, and she has otherwise failed to state a claim for relief. The motions to dismiss are therefore granted, and all claims against all defendants are dismissed.



For the purposes of the defendant's motion, all nonconclusory factual allegations are accepted as true. S. Cherry St. LLC v. Hennessee Grp. LLC, 573 F.3d 98, 100 (2d Cir. 2009); see alsoAshcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009). All reasonable inferences are drawn in favor of the plaintiff as non-movant. United States v. City of New York, 359 F.3d 83, 91 (2d Cir. 2004).

Plaintiff worked in the Barclays Information Technology Department. (Compl't at Ex. 2.) According to the plaintiff, she was terminated on May 6, 2011. (Compl't Narrative at 17.) In a 55-page Amended Complaint, plaintiff asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") and the Americans with Disabilities Act, 42 U.S.C. § 12112, et seq. (the "ADA") based on defendants' termination of her, the alleged failure to hire her, their refusal to accommodate her disability, unequal terms of employment, retaliation and sexual harassment. (Compl't at 1-3.) She also asserts that her constitutional rights were violated, and sets forth a promissory estoppel claim. (Compl't Narrative at 2-3.)

A. Plaintiff's Allegations of Disability-Based Discrimination.

According to plaintiff, she suffers from chronic respiratory ailments, including allergies and lung infections. (Compl't Narrative at 5.) Beginning in November 2010, she experienced recurrent lung infections over a seven-month period, leading to "severe asthma attacks." (Id. at 10.)

In November 2010, she used her five-day annual allotment of sick days. (Id. at 10.) In January 2011, while still employed at Barclays, she experienced another lung infection and missed eight more days of work. (Id. at 10.) As described in the Complaint, her manager, defendant Yuri Kuzmycz, "confronted her . . . and required that she apply for short-term disability." (Id. at 10.) Barclays approved plaintiff's absence on the basis of short-term disability. (Id. at 10.) In February 2011, plaintiff requested to work a daytime-only schedule, and was granted permission to do so for two weeks. (Id. at 11, 35.)

Plaintiff states that she requested accommodation for her disability and that Barclays refused. (Id. at 32.) She states that such an accommodation might include telecommuting. (Id. at 11.) Plaintiff alleges that she offered to provide a note from her mother, a clinical psychologist, describing her condition, but that her mother "was disallowed as a medical expert because of the family relationship." (Id. at 11.)

On March 12, 2011, plaintiff filed a charge of discrimination with the EEOC, asserting that Barclays did not reasonably accommodate her, was liable for sexual harassment and discriminated against her based on gender and disability status. (Compl't Ex. 19.)

According to plaintiff, on March 21, her manager threatened to terminate her if she continued to telecommute. (Compl't Narrative at 35.) On March 31, defendant Allison Kramer Deeb, a human resources employee, wrote to plaintiff stating that she had not explained why telecommuting was the only reasonable accommodation for her condition. (Compl't Ex. 16.) The letter stated that plaintiff had not provided meaningful documentation about her condition and that an independent physician was needed to examine plaintiff. (Compl't Ex. 16.) The letter noted plaintiff's right to confer with legal counsel on the issue. (Compl't Ex. 16.)

According to plaintiff, Deeb threatened to terminate plaintiff if she was not reviewed independently. (Compl't Narrative at 22, 25-26, 34.) A psychiatrist, defendant Solomon Miskin, and a pulmonologist, defendant Martin Baskin, independently examined plaintiff. (Id. at 20, 22, 26.) The examinations "include[ed] a strip search from above the waist," which plaintiff states amounted to an unreasonable search without due process. (Id. at 26.) She asserts that Miskin concluded that plaintiff suffered from emotional distress due to illness. (Id. at 31.)

As described in the Complaint: "Around that time Kara asked: Is it murder or homicide if she dies in the office building from a lung infection?" (Id. at 35.) A psychiatrist retained by Barclays then evaluated plaintiff's mental health and concluded she was "not a direct threat" at the workplace. (Id. at 39.) According to plaintiff, the psychiatrist attributed this remark to stress: "[T]he psychiatrist described her weeks of plastic-wrapped Kleenex tissue samples from her most recent lung infection that she brought to the psychiatric evaluation as medical evidence of illness." (Id. at 39.) Plaintiff also asserts that her comments about murder and homicide should not be construed as a suicide threat, but that suicidal individuals are nonetheless protected under the ADA. (Id. at 40.)

As discussed in greater detail below below, on May 17, 2011, during the course of an EEOC mediation, plaintiff and Barclays entered into a separation agreement and a related settlement agreement, which included a general release of claims in exchange for payment to her of $75,000.

Plaintiff contends that she was terminated due to a disability, and that it was more cost-effective for Barclays to terminate her than to provide reasonable employment accommodations. (Id. at 33.) Plaintiff asserts that although she was an at-will employee of Barclays, she nevertheless could not lawfully be terminated for discriminatory reasons. (Id. at 33.) She states that Barclays "regularly" denied her requests for accommodation in the six months preceding termination. (Id. at 35.) Plaintiff alleges that she was wrongfully terminated based in part on the conclusion of Deeb, who cited "insufficient medical information" as one basis for termination. (Id. at 20.) Plaintiff asserts that she provided sufficient documentation as to her illness, and that she was drug- and tobacco-free. (Id. at 20, 27.) Plaintiff alleges that in her 2010 performance review, she met expectations in all but one area. (Id. at 43.)

B. Plaintiff's Allegations of Sex Discrimination.

Plaintiff alleges that she was sexually harassed by a non-party vice president who "pressured her for dinner/drink dates," "stalked her," "mailed her a sexually themed gift, a whipped creme dispenser," and continued to solicit her for dates "after she requested his return address." (Id. at 44.)

She also contends that defendant Yuri Kuzmycz asked her if she had sex with every man she dated. (Id. at 10, 44.) "He asked if she had any tattoos and specifically inquired about a tramp stamp which is a lower back tattoo indicating sexual promiscuity." (Id. at 10.) He described "a Ukrainian tattoo on his lower neck/upper back area" and said that it was "faded." (Id. at 11, 44.) "He suggested that Kara was a whore." (Id. at 11.)

C. Plaintiff's Allegations Concerning the Agreements to Waive Any Claims in Exchange for $75,000.

According to plaintiff, on May 17, 2011, defendants Deeb and Leblang coerced plaintiff into executing the agreements in which she waived any claim concerning her employment at Barclays. (Id. at 16.) Negotiations occurred "at an unusual and inappropriate time," she asserts. (Id. at 29.) She contends that her illness caused her to make "extremely poor" decisions. (Id. at 16.) As described by the plaintiff:

Kara was not of sound mind and memory and in emotional distress at the time of the EEOC settlement agreement because of illness, emotional distress from illness, emotional distress from unemployment while disabled, a tranquilizer and narcotic cough suppressants. (Id. at 21.) She states that she used "a narcotic cough suppressant" that resulted in "cognitive impairment and almost continuous sleep." (Id. at 30.) Had she been in better health, she would have been able to better research and comprehend her legal options. (Id. at 30-31.) According to plaintiff, defendants Deeb and Liebling "exploited her medical condition" to facilitate the waiver of claims. (Id. at 21.)

The Complaint catalogs a variety of factors that plaintiff contends prevented her from knowingly executing the contracts. Plaintiff asserts that she was impaired by a lung infection, using "a narcotic cough suppressant" called Hydromet, experiencing emotional distress, and using prescription Lorazepam. (Id. at 15, 30.) She alleges that she suffered from severe lapses in short-term memory, and as an example, discusses a company-issued BlackBerry® that she misplaced for weeks. (Id. at 13-14.) She "also did not understand complex analytic tasks at the contracts," and attributes her condition to a condition called "anterograde amnesia." (Id. at 14-15.) By way of comparison, she notes that after her own father suffered a stroke, he too struggled with speech and memory difficulties. (Id. at 14-15.)

Plaintiff asserts that Barclays exploited her weakened condition to enter "an unconscionable contract with grossly unfair settlement amounts relative to other disability cases." (Id. at 49.) As a consequence, the Complaint alleges, plaintiff agreed to waive any claims in exchange for an unfair settlement payment. (Id. at 45-46.) She notes that in other disability discrimination and sexual harassment cases, plaintiffs have received damages awards ranging from $300,000 to more than $11 million. (Id. at 45-46.)

According to the plaintiff, the agreement was negotiated with the assistance of an EEOC mediator. (Id. at 18.) "The EEOC mediator was a cancer survivor, and Kara was disabled at the time of the agreement." (Id. at 18.) She states that the ...

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