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Pacheco v. Park South Hotel, LLC

United States District Court, Second Circuit

January 27, 2014



PAUL A. CROTTY, District Judge.

On April 5, 2013, Plaintiff Walter Pacheco ("Pacheco") filed an amended complaint against his former employer, Defendant Park South Hotel, LLC ("Park South") alleging age discrimination under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 623, and New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq., and disability discrimination under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. 12101 et seq., and NYCHRL. Pacheco claims that Park South failed to accommodate his back disability, retaliated against him by terminating him and not rehiring him, and discriminated against him by failing to rehire him. Park South moves to dismiss the complaint for failure to state a claim and for being untimely. Park South's motion is DENIED.


On. September 15, 2001, Pacheco began working as a houseman at Park South, where he performed a variety of cleaning, maintenance, and customer service duties in and around the hotel. (First Amended Complaint ("Compl.") ¶¶ 8-9.) Pacheco was qualified for this position and performed the duties satisfactorily. ( Id. ¶¶ 11-13.)

Pacheco worked in two shifts: the 8AM to 4PM ("early shift") in the summer and the 2PM to 10PM ("late shift") in the winter. ( Id. ¶ 9.) During the early shift (8AM to 4PM), Pacheco's general duties included "breakfast/restaurant, conference breaks, and finish lower floors/boxes." ( Id. ¶ 10.) Pacheco also performed additional, "onerous tasks" such as sweeping the sidewalks, shampooing the carpet, washing the windows, and sweeping the stairs. ( Id. ¶ 10.) Pacheco was the only houseman required to perform these tasks on the early shift. During the late shift, Pacheco's general duties included cleaning public areas, polishing all brass, and removing heavy bags of garbage. ( Id. ¶ 10.)

From the start of his employment, Pacheco suffered from chronic low back problems for which he received regular medical treatment. ( Id. ¶ 18.) Pacheco regularly and repeatedly complained to his supervisor Jacob Taft ("Taft") and the Park South's general manager Marcella Munoz ("Munoz") about his back problems and requested to be assigned to less strenuous tasks but they denied his requests. ( Id. ¶ 20.) Pacheco's primary care physician, Dr. Ariel Rodriguez ("Dr. Rodriguez"), and neurologist, Dr. Dmitriy Grinshpun ("Dr. Grinshpun"), advised Park South that Pacheco should not perform strenuous work. ( Id. ¶ 21.)

On November 18, 2008, Park South terminated Pacheco and stated that it was for nonperformance reasons. ( Id. ¶ 25.) At the time, Pacheco was the oldest houseman at 54 years old. ( Id. ¶ 27.) A co-worker named Victor, who was approximately 40 years old, replaced Pacheco on the late shift. ( Id. ¶ 29.) After Victor moved to a new position, a new worker in his late 20s or early 30s filled the position. (Id.)

On March 18, 2009, Pacheco filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination on the basis of national origin and disability ("first EEOC charge"). ( Id. ¶ 6; see Declaration of Matthew L. Levine ("Levine Decl."), Ex. L) In its submission to the EEOC, Park South claimed that Pacheco was laid off and that his shift was eliminated as a result of declining business. (Compl. ¶ 28.) Park South further claimed that it intended to re-hire laid off workers, like Pacheco, when the need arose. ( Id. 30.) On September 4, 2009, Pacheco requested that Munoz re-hire him and noted that Victor filled his former position. ( Id. 31.) Park South responded that the hotel could not rehire Pacheco because his position was eliminated. (Id.)

On January 14, 2010, Pacheco amended his charge with the EEOC to add age discrimination claims ("second EEOC charge"). ( Id. ¶ 6; see Levine Decl., Ex. 2.) On April 27, 2012, the EEOC held:

[I]t is more likely than not that Respondent discriminated against [Pacheco] based on his age, 57. [Pacheco]'s credible testimony and his September 4, 2009 letter to [Park South] establish that he continuously contacted [Park South] seeking to return to work. [Park South] alleges that as a result of the economic downturn and re-organization of the housekeeping department, [Pacheco]'s position remained eliminated. However, documentary evidence shows that [Park South] hired new and younger employees in the position of houseman during the months of August, September and October of 2009 and the months of January, May and August of 2010, Credible witness testimony supports that new and younger employees were hired to do the same assignments that [Pacheco] performed. Even though [Park South] had vacancies and even though [Pacheco] called to be reinstated, [Park South] did not consider [Pacheco] for rehire and did hire younger employees during the same period.

(Compl. 32.) Pacheco received a Notice of Right to Sue from the EEOC on September 19, 2012. ( Id. 6.) On December 14, 2012, Pacheco filed his complaint with this Court.


I. Pacheco Has Stated a Claim under Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) requires Plaintiff to "provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.'" ATSI COMMC' ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (quoting Bell Atl. Corp. v. Twain 550 U.S. 544, 555 (2007)). Plaintiff must allege "enough facts to state a claim to relief that is plausible on its face.'" Starr v. Sony BMG Music Entm't, 592 F.3d 314, 321 (2d Cir. 2010) (quoting Twombly, 550 U.S. at 570). "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). The Court accepts as true all well-pleaded factual allegations and draws all inferences in Plaintiffs favor. See Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). In evaluating a motion to dismiss, the Court "may ...

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