United States District Court, S.D. New York
[Copyrighted Material Omitted]
For Sarah Baez, Plaintiff: Ricardo Antonio Aguirre, LEAD ATTORNEY, Law Office of Ricardo Aguirre, Bronx, NY.
For The State of New York, The New York State Office of Temporary and Disability Assistance, Defendants: Helena Ann Lynch, Lakisha Marie Spence, LEAD ATTORNEYS, New York State Office of The Attorney General, New York, NY; Jennifer C. Simon, Office of the Attorney General of the State of New York, New York, NY; Roderick Leopold Arz, New York State Office of the Attorney General (NYC), New York, NY.
MEMORANDUM & ORDER
ALISON J. NATHAN, United States District Judge.
Plaintiff Sarah Baez, proceeding pro se, brings this suit under the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12101 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and New York State Human Rights Law, N.Y. Exec. Law § 290 et seq., alleging illegal discrimination and retaliation by her employer, the State of New York and the New York State Office of Temporary and Disability Assistance (OTDA). Defendants have filed a motion to dismiss the Second Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). See Dkt. No. 46. For the following reasons, that motion is GRANTED.
For the purposes of this motion, the Court accepts as true the factual allegations in the Second Amended Complaint of November 8, 2013. Plaintiff is a sixty-year-old female of Puerto Rican descent. Compl. ¶ 3 (Dkt. No. 52). She was hired by Defendant OTDA to the position of " Disability Analyst 1 Spanish Speaking" in 1979, and in 2001 she was " upgraded" to Disability Analyst 2 after the level-1 position ceased to exist. Id. ¶ 18. She remained in that position until she was suspended with a demand for her termination on January 4, 2013, after which she retired. Id. ¶ ¶ 27, 32.
During the course of her employment, Plaintiff was diagnosed with a series of debilitating ailments that made it difficult for her to perform her job; these ailments either manifested or worsened after 2000. Id.¶ ¶ 21-26, 32. These health problems included lower back degenerative disease and cervical spine degenerative disease, id. ¶ 22; upper extremity neuropathy and arthritis, id. ¶ 23; carpal tunnel syndrome, id. ¶ 24; migraine headaches involving visual disturbance, pain, and aura, id. ¶ 25; and glaucoma, id. ¶ 26.
Plaintiff requested a series of accommodations for these ailments, with several examples listed in the Complaint. She asked for voice recognition software in 2001, and her request was denied until 2002 when she pointed out that other employees had been given the software without a medical need. Id. ¶ 32. On other occasions, she was denied requests for replacement of a broken electronic stapler, reassignment of her work space away from a hostile male coworker due to her anxiety, a flat screen computer monitor, and movement to another, more dimly lit workspace to lessen her migraines. Id. ¶ ¶ 32-49. Her supervisors also refused to let her remove a second monitor at her workstation to clear up desk space and store files in a filing a cabinet located behind her workspace. Id. ¶ ¶ 50-59. When she did not receive a satisfactory outcome on this last request, she contacted the New York State Public Employee Safety and Health Bureau, which sent investigators to visit her workspace on November 18, 2010, but subsequently reached a decision unfavorable to her. Id. ¶ ¶ 62, 64. Five days after the investigation, Plaintiff was given a notice of discipline demanding her termination. Id. ¶ 63.
In 1994 or 1995, Plaintiff brought a federal lawsuit against Defendants alleging discrimination in their failure to promote Hispanic employees and retaliation for
bringing it to Defendants' attention. Id. ¶ ¶ 28-29, 84. That lawsuit settled. Id. ¶ 30. In 2008, Plaintiff began applying for a promotion to " Disability Analyst 3" and " Disability Analyst 3 Spanish Language" positions, but was not promoted that year, nor when she repeatedly applied in 2010, 2011, and 2012. Id.¶ ¶ 65, 79, 91-98, 101. She took the promotional examination in June 2010, and received a score of " 90." Id. ¶ ¶ 81-82. In August 2012, she was interviewed for a level-3 position, but was told she scored only 2 out of 3 on the Spanish proficiency examination, although she was not permitted to see the results. Id. ¶ ¶ 101-05. She alleges that she was similarly situated to the candidates who got the promotions, in the sense that she was a Disability Analyst 2 when applying, had passed a competitive civil service examination for her current position, and passed an oral examination in Spanish. Id. ¶ 68. She maintains that she was more highly qualified than these other candidates, however, because of her years of experience, her high rate of decisional accuracy, and positive comments from co-workers. Id. ¶ ¶ 69-71. Based on her performance, she was asked to train new level-2 Disability Analysts in 1998. Id. ¶ 99.
Instead of being promoted, Plaintiff says she was discriminated and retaliated against by placement on a " Medical Assistance Aid to the Disabled" project team, which she alleges was an assignment reserved for " older workers" seen as " incompetent or problematic." Id. ¶ 77. Even with this assignment, Plaintiff retained her position of Disability Analyst 2, pay grade, and seniority during this time frame. Id. ¶ 77. The unit was reassigned to evaluating Continuing Disability Review claims in 2009, but remained in the same location with the same personnel. Id. ¶ 78. That unit was disbanded while Plaintiff was suspended in the summer of 2012, but upon her return, she was assigned back to the unit as its sole member. Id.
Plaintiff alleges that as of April 2009, of 124 Disability Analyst 3 positions, only one " generic" (that is, non-Spanish language) position was occupied by a Hispanic employee. Id. ¶ 85. Five Hispanic employees were in Disability Analyst 3 Spanish Language positions, three of them for " many years," and two promoted in 2008, allegedly because of Plaintiff's complaints. Id. ¶ 86. Both of those employees scored in the 70's on the promotion examination, compared to Plaintiff's 90. Id. ¶ ¶ 19, 90. In 2011, out of 544 Disability Analyst 2s, 29 were Hispanic, and out of 135 Disability Analyst 3s, there was one Hispanic employee in a " generic" position and three in Spanish Language positions. Id. ¶ 88.
In 2010, Plaintiff filed an action in New York state court alleging a pattern or practice of discriminatory and retaliatory acts against her between 2000 and 2009. Id. ¶ 111. Beginning in August 2010, she began to receive a series of disciplinary notices, including ones on August 4, 2010; November 23, 2010; May 4, 2011; April 2, 2012; and January 11, 2013. Id. ¶ 113. The first of these notices " demanded" that Plaintiff be suspended without pay, and the rest " demanded" her termination. Id. ¶ 114. These notices charged Plaintiff with insubordination for not performing her job, and were accompanied by representations to a labor arbitrator that the office had given Plaintiff every reasonable accommodation for which she had asked. Id. ¶ ¶ 116-20. On January 4, 2013--the last day Plaintiff worked for Defendants--she was given a notice of immediate suspension and escorted from the building, and a week later was informed that it was for insubordination in failing to follow directions and failure to manager her caseload. Id. ¶ ¶ 121-25. She claims the Defendants falsely represented the she had
more than the average number of open cases and that she had breached the confidentiality of clients, and that she had not been receiving new cases for seven weeks. Id. ¶ ¶ 123-35.
Plaintiff's final allegation is that Defendants denied her the opportunity to work overtime that it offered to other level 2 Disability Analysts. She claims that after she was placed in the aforementioned Medical Assistance Aid to the Disabled unit for discriminatory and retaliatory reasons, she was repeatedly denied opportunities for overtime and to transfer out of the unit, and was told that overtime work was not permitted in that unit. Id. ¶ ¶ 145-151. Analysts doing standard Social Security Administration processing were permitted such overtime. Id. ¶ ¶ 147, 151. After the Medical Assistance unit was disbanded and Plaintiff returned to Social Security Administration work, she was told she could not take overtime because she was being assigned to fewer cases than other analysts, and was told she could not transfer to other types of work. Id. ¶ ¶ 155-59. On another occasion, when an email was sent to all analysts offering overtime, Plaintiff was told she could not participate because her performance evaluation was unsatisfactory. Id. ¶ ¶ 162-64.
Defendants first contend that the Court should abstain from hearing this case because of a pending state action brought by Plaintiff. They argue that abstention under Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), is applicable. The Court disagrees.
A. Legal Standard
Federal courts have a " virtually unflagging" obligation to hear cases within their jurisdiction. Lexmark Int'l, Inc. v. Static Control Components, Inc., 134 S.Ct. 1377, 1386, 188 L.Ed.2d 392 (2014) (quoting Sprint Commc'ns, Inc. v. Jacobs, 134 S.Ct. 584, 591 (2013)). The abstention doctrines recognized by the Supreme Court provide an " extraordinary and narrow exception" to this rule for situations where requiring the parties to litigate only in state court " would clearly serve an important countervailing interest" to this obligation to decide the case before the court. Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (quoting Cnty. of Allegheny v. Frank Mashuda Co., 360 U.S. 185, 188-89, 79 S.Ct. 1060, 3 L.Ed.2d 1163 (1959)). Colorado River abstention may apply " in situations involving the contemporaneous exercise of concurrent jurisdictions" by federal and state courts, when abstaining from federal jurisdiction would serve the interests of " conservation of judicial resources and comprehensive disposition of litigation." Colo. River, 424 U.S. at 817.
For Colorado River abstention to be appropriate, the federal and state litigation must first be parallel, in the sense that " substantially the same parties are contemporaneously litigating substantially the same issue in another forum." Dittmer v. Cnty. of Suffolk, 146 F.3d 113, 118 (2d Cir. 1998) (quoting Day v. Union Mines Inc., 862 F.2d 652, 655 (7th Cir. 1988)); see also Nat'l Union Fire Ins. Co. v. Karp, 108 F.3d 17, 22 (2d Cir. 1997) (" Federal and state proceedings are 'concurrent' or 'parallel' for purposes of abstention when the two proceedings are essentially the same; that is, there is an identity of parties, and the issues and relief sought are ...