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Rowe v. New York State Division of The Budget

United States District Court, Second Circuit

December 11, 2013

LYNN A. ROWE, Plaintiff,


LAWRENCE E. KAHN, District Judge.


Pro se Plaintiff Lynne Rowe ("Plaintiff") commenced this action under the Americans with Disabilities Act ("ADA"), 42 U.S.C. ยงยง 12101-12213, claiming that she was discriminated against on account of her disability and retaliated against for engaging in protected activity. Dkt No. 1 ("Original Complaint"). In her Original Complaint, Plaintiff named the New York State Division of the Budget ("DOB, " or "Defendant"), James Kiyonaga, her former supervisor, and Thomas Wood, Assistant Unit Head of the Expenditure Debt Unit, as defendants. Original Compl. at 1-3. Plaintiff later withdrew the Original Complaint and filed an Amended Complaint that named only the DOB. Dkt. No. 16 ("First Amended Complaint"). After Defendant moved to dismiss the First Amended Complaint on Eleventh Amendment sovereign immunity grounds, Plaintiff cross-moved to amend the First Amended Complaint to include a request for injunctive relief against Robert Megna, the Director of the DOB, and Mr. Wood, thereby allowing her to take advantage of the exception to sovereign immunity established by Ex Parte Young , 209 U.S. 123 (1908). Dkt. No. 20 ("Cross-Motion") at 1-2. Plaintiff attached a signed copy of her proposed Second Amended Complaint. Dkt. No. 20-2 ("Second Amended Complaint").

On September 17, 2012, the Court granted Defendant's Motion to dismiss the First Amended Complaint on sovereign immunity grounds, but reserved decision on Plaintiff's Cross-Motion. Dkt. No. 26 ("September Order"). The Court found that amending the First Amended Complaint to assert a disability discrimination claim against Mr. Wood and Mr. Megna would be futile, but that amending it to include a claim for retaliation would not. Id . However, because it was unclear whether Plaintiff's proposed Second Amended Complaint sought any available relief for her alleged injuries, it remained unclear whether Plaintiff had identified an actual injury likely to be redressed by a favorable judicial decision as required for Article III standing. Id. at 11-12. The Court therefore determined that it might lack subject matter jurisdiction over Plaintiff's claims, and reserved decision on the Cross-Motion pending further briefing on the issue of subject matter jurisdiction. Id.

Having reviewed the parties' additional submissions, the Court grants in part Plaintiff's Cross-Motion for leave to file the Second Amended Complaint.


A motion to amend a complaint is governed by Rule 15(a) of the Federal Rules of Civil Procedure, which provides that "leave [to amend] shall be freely given when justice so requires." FED. R. CIV. P. 15(a); Foman v. Davis , 371 U.S. 178, 182 (1962); Manson v. Stacescu , 11 F.3d 1127, 1133 (2d Cir. 1993). Nevertheless, it is appropriate for leave to be denied where the proposed amendment would be futile, such as where the proposed amendment would be subject to dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief may be granted. See Foman , 371 U.S. at 182; Ruffolo v. Oppenheimer & Co. , 987 F.2d 129, 131 (2d Cir. 1993); Ruiz v. Suffolk Cnty. Sheriff's Dep't, No. 03-cv-3545 , 2008 WL 4516222, at *2 (E.D.N.Y. Oct. 2, 2008) (leave to amend should be denied where the claim is "clearly frivolous or legally insufficient on its face") (internal quotation marks and citation omitted); Benfield v. Mocatta Metals Corp., No. 91-cv-8255, 1992 WL 177154, at *1 (S.D.N.Y. July 13, 1992) ("If a proposed amendment would be insufficient to withstand a motion to dismiss, it is futile and leave to amend should be denied.").

To survive a motion to dismiss pursuant to Rule 12(b)(6), a "complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal , 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570 (2007)); see also FED. R. CIV. P. 12(b)(6). A court must accept as true the factual allegations contained in a complaint and draw all inferences in favor of a plaintiff, see Allaire Corp. v. Okumus , 433 F.3d 248, 249-50 (2d Cir. 2006), and a pro se complaint is to be read liberally, Branum v. Clark , 927 F.2d 698, 705 (2d Cir. 1991). A complaint may be dismissed pursuant to Rule 12(b)(6) only where it appears that there are not "enough facts to state a claim to relief that is plausible on its face." Twombly , 550 U.S. at 570. Plausibility requires "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the alleged misconduct]." Id. at 556. The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal , 556 U.S. at 678 (citing Twombly , 550 U.S. at 556). "[T]he pleading standard Rule 8 announces does not require detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id . (citing Twombly , 550 U.S. at 555). Where a court is unable to infer more than the mere possibility of the alleged misconduct based on the pleaded facts, the pleader has not demonstrated that she is entitled to relief and the action is subject to dismissal. See id. at 678-79.


A. Plaintiff's Retaliation Claim

A retaliation claim under the ADA requires four elements: (1) the plaintiff engaged in activity protected by the ADA; (2) the employer was aware of that activity; (3) the employer took adverse action against the plaintiff; and (4) there is a causal connection between the adverse action and the protected activity. Treglia v. Town of Manlius , 313 F.3d 713, 719 (2d Cir. 2002); Chiesa v. N.Y.S. Dep't of Labor , 638 F.Supp.2d 316, 323 (N.D.N.Y. 2009). In determining whether adverse action has occurred, the anti-retaliation provisions of the ADA "cover a broad range of employer conduct, prohibiting any materially adverse' activity that might dissuade[] a reasonable worker from making or supporting a charge of discrimination.'" Lewis v. Erie Cnty. Med. Ctr. Corp. , 907 F.Supp.2d 336, 350 (W.D.N.Y. 2012) (quoting Burlington N. & Santa Fe Ry. Co. v. White , 548 U.S. 53, 68 (2006) (alteration in original)).

Plaintiff alleges that her employer retaliated against her by: (1) refusing to promote her to the position of Grade 23 Senior Budget Examiner; (2) excluding her from meetings, trainings and projects; and (3) changing her position/job title. Second Am. Compl. at 7, 12-18, 20. In the September Order, the Court found that these constitute adverse employment actions. Sept. Order at 10. Defendant nevertheless argues that amending the complaint is futile because Plaintiff does not allege that she applied for a promotion to a specific position for which she was qualified, and therefore has not properly alleged an adverse employment action. Dkt. No. 28 ("Defendant's Brief") at 2-3. This argument fails for three reasons.

First, Defendant's argument relies on decisions discussing the elements of a claim of discriminatory failure to promote. See id. (citing Graziosac v. New York City , 29 Fed.App'x 691, 693 (2d Cir. 2002); Brown v. Coach Stores, Inc. , 163 F.3d 706, 710 (2d Cir. 1998); and Miller v. Taco Bell Corp. , 204 F.Supp.2d 456, 464 (E.D.N.Y. 2002)). However, Plaintiff has also alleged a retaliatory failure to promote, and there are different standards for an adverse action under these two types of claims. See Thompson v. N. Am. Stainless, LP , 131 S.Ct. 863, 867-68 (2011); White , 548 U.S. at 68. The standard for adverse action under the anti-retaliation provisions "has been found to be broader than that applied to a claim of disparate treatment, and may include actions which do not directly or immediately result in any loss of wages or benefits....'" Lewis , 907 F.Supp.2d at 350 (quoting Millea v. Metro-North R.R. Co. , 658 F.3d 154, 165 (2d Cir. 2011)); see also Thompson , 131 S.Ct. at 867-68; White , 548 U.S. at 68.

Second, even under the rule articulated by Defendant, Plaintiff has adequately alleged that she applied for a promotion and her application was denied.[2] Defendant contends that Plaintiff "does not allege that she applied for a specific promotion." Def.'s Br. at 3. However, the Second Circuit has held that the requirement that a plaintiff alleging discrimination based on a failure to promote show that she applied for the specific job at issue does not apply where the plaintiff "indicate[d] to the employer an interest in being promoted to a particular class of positions, but was unaware of specific available positions because the employer never posted them." Mauro v. S. New Eng. Telecomm., Inc. , 208 F.3d 385, 387 (2d Cir. 2000); see also Williams v. R.H. Donnelley, Corp. , 368 F.3d 123, 129 (2d Cir. 2004). Plaintiff alleges that she passed the required promotional examination but was nevertheless "passed over" for promotion. Second Am. Compl. at 7. The purported justification for the refusal to promote her was her allegedly deficient job ...

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