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Best v. Drugs

United States District Court, Southern District of New York

November 6, 2014

JANICE BEST, Plaintiff,
v.
DUANE READE DRUGS, Defendants

Janice Alise Best, Plaintiff, Pro se, New York, N.Y. USA.

For Duane Reade Drugs, Defendant: Joel Lester Finger, LEAD ATTORNEY, Christine Lee Hogan, Littler Mendelson, P.C. (NYC), New York, N.Y. USA.

MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S PARTIAL MOTION TO DISMISS PLAINTIFF'S COMPLAINT

Colleen McMahon, United States District Judge.

Plaintiff Janice Best (" Best"), brings this action against Defendant Duane Reade Drugs (" Duane Reade"). Best seeks relief pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e et seq . (" Title VII"), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § § 621 et seq . (the " ADEA"), and the Americans with Disabilities Act of 1990, 42 U.S.C. § § 12112 et seq . (the " ADA").

Currently before the Court is Duane Reade's motion for partial dismissal pursuant to Fed.R.Civ.P. 12(b)(1). For the following reasons, Duane Reade's motion is granted except as to Best's retaliation claim, and is denied as to that claim.

BACKGROUND

Best was an employee of Duane Reade. On January 2, 2013, Best dual-filed a complaint with the New York City Commission on Human Rights (" NYCCHR") and the Equal Employment Opportunity Commission (" EEOC") against Duane Reade, and Anthony Hussein (Best's manager at Duane Reade), for their alleged disability-related discriminatory conduct in violation of Title 8 of the Administrative Code of the City of New York (" Title 8"), and the ADA. See Affirmation of Joel L. Finger, Exhibit 3, Determination and Order After Investigation, dated January 23, 2014 (the " NYCCHR Order"), at 1, n.1; Affirmation of Joel L. Finger, Exhibit 1, Verified Complaint, dated January 2, 2013 (the " NYCCHR Complaint"), at 1-2.

The allegations asserted by Best in the NYCCHR Complaint were summarized by the NYCCHR in the NYCCHR Order:

In May of 2012, [Best] became disabled. On May 30, 2012, [Best] provided Respondent Hussein with a doctor's note that indicated that she was restricted from performing certain physical activities and told him that she could not perform the duties of the cashier position due to her disability and concomitant limitations. Respondent Hussein took the note but brushed [Best] off telling her, in sum and substance, " to go do whatever she wanted around the store." [Best] asked Respondent Hussein to allow her to perform other job activities but he refused. On June 11, 2012, [Best] received a phone call from Respondent Hussein informing her that her employment had been terminated. [Best], a disable woman, alleges that Respondents discriminated against her in her employment by failing to provide her with a reasonable accommodation for her disability in violation of Title 8 of the Administrative Code of the City of New York, and have injured her thereby. The Complaint did not charge retaliation for the termination of [Best's] employment.
NYCCHR Order at 1.

Based on the allegations asserted by Best, the NYCCHR Complaint charged the following:

1. Complainant charges that Respondents have discriminated against her in the terms, conditions, privileges of her employment by terminating her employment because of her disability in violation of Title 8 of the Administrative Code of the City of New York, and have injured her thereby. NYCCHR Complaint ¶ 7 (emphasis added).
2. Complainant charges that Respondents have discriminated against her in her employment by failing to accommodate Complainant's disability in violation of Title 8 of the Administrative Code of the City of New York, and have injured her thereby. Id. ¶ 8 (emphasis added).
3. Complainant further alleges that Respondent has violated Title I of the [ADA] on the basis of her disability , and hereby authorizes the [NYCCHR] to accept this verified complaint on behalf of the [EEOC], subject to the statutory limitations contained in the [ADA]. Id. ¶ 9 (emphasis added).

As to Best's Title 8 claim, the NYCCHR held that, in response to Best's request, Duane Reade and Hussein provided her with a reasonable accommodation of her shoulder disability, by permitting her to do alternative work such as " facing" and arranging products on the shelves. NYCCHR Order at 2.

The NYCCHR also dismissed Best's ADA claim, finding that the record clearly showed that Best was not terminated because of her shoulder disability. Instead, the NYCCHR determined that Duane Reade asserted a legitimate non-discriminatory reason for terminating Best -- she violated Duane Reade's attendance policy by calling out of, or being late to, work without an excused reason on fifty-two occasions within her first year of employment. Id. at 3.

The NYCCHR further found that, upon the facts alleged, Best may have been attempting to assert a claim for retaliation, although such a claim was not expressly alleged in the NYCCHR Complaint. Id. Nevertheless, citing reasons similar to those discussed in its analysis of Best's ADA claims, as well as an overall lack of evidence in the record, the NYCCHR dismissed any such retaliation claim. Id. at 3-4.

After its investigation, the NYCCHR determined there is " no probable cause to believe that [Duane Reade and Hussein] engaged in the unlawful discriminatory practices alleged in the Complaint." Id. On January 23, 2014, Best's NYCCHR Complaint was dismissed in its entirety. Id. at 4.

On April 4, 2014, the EEOC issued Best a " Dismissal and Notice of Rights" letter. See Affirmation of Joel L. Finger, Exhibit 2, Dismissal and Notice of Rights, dated April 1, 2014, (the " EEOC Right to Sue Letter"). The EEOC " adopted the findings of the state or local fair employment practices agency that investigated [the] charge, " and closed Best's file. Id. at 1.

On April 8, 2014, Best initiated this action and filed a Complaint for Employment Discrimination (the " Initial Complaint"), asserting claims solely under the ADA. initial Complaint, at 1. Best alleged that on May 31, 2012, Duane Reade discriminated against her based on her disability, or perceived disability, relating to her right shoulder. Id. at 2-3. Best further alleged that after she presented Duane Reade with a note from her doctor that requested she refrain from lifting heavy objects, Duane Reade failed to accommodate her disability. These allegations, unsurprisingly, mirror those alleged in the NYCCHR Complaint.

On May 29, 2014, Best filed an Amended Complaint for Employment Discrimination (the " Amended Complaint"), bringing additional claims against Duane Reade pursuant to Title VII and the ADEA. Amended Complaint, at 1. Best alleged that Duane Reade, in addition to discriminating against her on the basis of her disability, also discriminated against her on the basis of race (" Black"), gender/sex (" Female"), and age (" 1-18"). Id. at 3. Best further alleged additional discriminatory conduct (that is, in addition to Duane Reade's failure to accommodate her disability), such as " [t]ermination of my employment, " " [u]nequal terms and conditions of my employment, " and " [r]etaliation." Id. at 2-3.

On August 28, 2014, Duane Reade moved to dismiss Best's newly-asserted Title VII and ADEA claims pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction based on Best's failure to exhaust available administrative remedies.

STANDARD OF REVIEW

On a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), the plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence. See Aurecchione v. SchoolmanTransp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). Although the Court must accept as true all material factual allegations in the complaint, it will not draw " argumentative inferences favorable to the party asserting jurisdiction." Atl. Mut. Ins. Co. v. Balfour Maclaine Int'l Ltd., 968 F.2d 196, 198 (2d Cir. 1992). In resolving a motion to dismiss for lack of subject matter jurisdiction, the Court may refer to evidence outside the pleadings. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

DISCUSSION

I. Best's Title VII race and gender claims and her ADEA claim are dismissed because Best failed to exhaust available administrative remedies.

Duane Reade argues that Best's race and sex/gender discrimination claims, brought pursuant to Title VII, and her age discrimination claims, brought pursuant to the ADEA, must be dismissed for lack of subject matter jurisdiction because Best failed to exhaust administrative remedies. Def.'s Mem. at 4. Duane Reade is correct. Those claims are dismissed with prejudice, because it is now too late for Best to exhaust.

Under Title VII and the ADEA, " a litigant must exhaust available administrative remedies in a timely fashion" as a prerequisite to gaining access to the federal courts. Briones v. Runyon, 101 F.3d 287, 289 (2d Cir. 1996); see also Belgrave v. Pena, 254 F.3d 384, 386 (2d Cir. 2001). The exhaustion requirement provides the agency with notice of an employee's complaint and the opportunity to investigate the matter and take remedial action, where necessary. Stewart v. INS, 762 F.2d 193, 198 (2d Cir. 1985). " The purpose of the notice provision, which is to encourage settlement of discrimination disputes through conciliation and voluntary compliance, would be defeated if a complainant could litigate a claim not previously presented to and investigated by the EEOC." Miller v. Int'l Tel. & Tel Corp., 755 F.2d 20, 26 (2d Cir. 1985).

A plaintiff may not file an action in federal court until the administrative EEOC process has been completed and fully exhausted. See 29 C.F.R. § 1614.110. " Such exhaustion requires that the claimant present to the pertinent administrative agency...all claims that [she] will seek to pursue in court." Dixon v. Krasdale Foods, Inc., No. 13-CV-3045, 2013 WL 6334439, at *3 (S.D.N.Y. Dec. 4, 2013). Obtaining a right-to-sue letter from the EEOC is a statutory prerequisite to commencing a federal suit under Title VII and the ADEA, and " such a requirement applies with equal force to pro se litigants." Benardo v. Am. Idol Prods., Inc., No. 10-CV-6487, 2010 WL 4968177, at *2 (S.D.N.Y. Dec. 6, 2010); see Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 522-26 (2d Cir. 1996). Accordingly, if a plaintiff fails to properly exhaust available administrative remedies, he is barred from seeking relief in federal court. See Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001).

Duane Reade argues that Best failed to exhaust her Title VII and ADEA discrimination claims because: (1) these claims were not included in the original EEOC charge; and (2) they are not based on conduct subsequent to the original EEOC charge that is " reasonably related" to the conduct alleged in the original EEOC charge.

Title VII and the ADEA's administrative exhaustion requirement mandates that district courts have " jurisdiction to hear [discrimination] claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is 'reasonably related' to that alleged in the EEOC charge." Butts v. City of New York Dept. of Hous., 990 F.2d 1397, 1401 (2d Cir. 1993).

Claims are " reasonably related" where (1) they would fall within the scope of the EEOC investigation which reasonably could be expected to arise from the original charge of discrimination; (2) the later claim alleges that the employer is retaliating against the plaintiff for filing the original EEOC charge; or (3) the plaintiff " alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Id. at 1402-03.

In determining whether a plaintiff's claims are reasonably related, the primary focus is " on the factual allegations made in the [division complaint] itself, describing the discriminatory conduct about which plaintiff is grieving." Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (internal quotations omitted). " Generally, claims based on 'a wholly different type of discrimination' than initially asserted in the EEOC charge will not be permitted to be brought into federal court." Alonzo v. Chase Manhattan Bank, N.A., 25 F.Supp.2d 455, 458 (S.D.N.Y. 2005) (quoting Peterson v. Ins. Co. of N.A., 884 F.Supp. 107, 109-10 (S.D.N.Y. 1995); see Dahbany-Miraglia v. Queensboro Cmty. Coll., No. 03-CV-8052, 2004 WL 1192078, at *5 (S.D.N.Y. May 27, 2004) (claims premised on entirely different types of discrimination are not considered reasonably related); Burrell v. City Univ. of New York, 995 F.Supp. 398, 407-08 (S.D.N.Y. 1998).

Duane Reade asserts, correctly, that in addition to the absence of an express claim of discriminatory conduct related to Best's race, sex/gender, or age in the NYCCHR Complaint, the NYCCHR did not investigate such conduct, nor could it have been expected to do so, since discrimination based on these attributes was not fairly suggested by her disability claim.

Best's Title VII and ADEA claims are not " reasonably related" to the disability-related discriminatory conduct charged in the NYCCHR Complaint; they are premised on entirely different types of discrimination.

There is nothing in the NYCCHR Complaint that would give the NYCCHR, or the EEOC, reasonable notice that claims of race, sex/gender, or age discrimination should be investigated. The conduct complained of in the Amended Complaint does not fall within the scope of the NYCCHR investigation, nor is it a " further incident of discrimination carried out in exactly the same manner" as that alleged in the NYCCHR Complaint. See Dahbany-Miraglia, 2004 WL 1192078, at *6-7; Burrell, 995 F.Supp. at 407-08; McNealy v. N.Y. Public Library, No. 96-CV-3023, 1997 WL 607548, at *3 (S.D.N.Y. Oct. 1, 1997).

Best cannot now exhaust her administrative remedies. The last possible day in which she could have experienced any form of discrimination was her last day of work -- June 11, 2012. An employee alleging discrimination under Title VII in a dual-filing state must file her administrative claim no later than 300 days after she experienced discrimination. See Pilgrim v. McGraw-Hill Companies, Inc., 599 F.Supp.2d 462, 473 (S.D.N.Y. 2009). It is far too late for Best to exhaust her unexhausted claims now; therefore, they are dismissed with prejudice.

II. Best's retaliation claims are reasonably related to those asserted in the NYCCHR Complaint and are thus exhausted.

To the extent that Duane Reade seeks to dismiss Best's newly-asserted retaliation claims, its motion is denied.

Generally, claims of retaliation " postdating the submission of an EEOC charge are excepted from the requirement that the claim must first have been made in the EEOC charge." Ibraheem v. Wackenhut Servs., Inc., 09-CV-5335, 2014 WL 1873393, at *7 (E.D.N.Y. May 9, 2014); see Joseph v. Price Costco, 100 Fed.Appx. 857, 857-58 (2d Cir. 2004). But this is not the case here because Best was terminated by Duane Reade before she filed an EEOC charge.

However, numerous courts in this Circuit have found retaliation claims arising out of retaliatory conduct occurring prior to the employee's filing of an EEOC charge to be reasonably related to claims of discrimination formally included in the charge where the charge includes enough factual allegations to alert the EEOC to the possibility that the employee was subjected to retaliation. See, e.g., Ridgway v. Metro. Museum of Art, No. 06-CV-5055, 2007 WL 1098737, at *5 (S.D.N.Y. Apr. 10, 2007); Rieger v. Orlor, Inc., 427 F.Supp.2d 105, 115 (D. Conn. 2006); see also Barriera v. Bankers Trust, No. 98-CV-3641, 2003 WL 22387099, at *4-5 (S.D.N.Y. Oct. 20, 2003).

While courts have also found such pre-EEOC charge retaliation claims not to be reasonably related to claims explicitly made in the charge, these cases have generally involved charges that were devoid of any reference to a retaliatory motive or any allegation that the plaintiff had engaged in a protected activity. See, e.g., Mathirampuzha v. Potter, 548 F.3d 70, 76-78 (2d Cir. 2008); Moguel v. Covenant House/New York, No. 03-CV-3018, 2004 WL 2181084, at *7 (S.D.N.Y. Sept. 29, 2004); Cordoba v. Beau Deitl & Assocs., No. 02-CV-4951, 2003 WL 22927874, at *10 (S.D.N.Y. Dec. 2, 2003); Bailey v. Colgate-Palmolive Co., No. 99-CV-3228, 2003 WL 21108325, at *13 (S.D.N.Y. May 14, 2003).

The retaliation claims are still exhausted if the EEOC charge put the agency on notice as to the existence of such a claim, which, in this case, it clearly did. See, e.g., Williams v. N.Y.C. Housing Auth., 458 F.3d 67, 71 (2d Cir. 2006); Jenkins v. N.Y.C. Transit Auth., 646 F.Supp.2d 464, 473 (S.D.N.Y. 2009). It cannot be said that Best's NYCCHR Complaint was devoid of any reference to retaliation because the NYCCHR specifically evaluated Best's alleged retaliation claims, as evident by the NYCCHR Order. Therefore, Best's retaliation claims are " reasonably related" to those asserted in the NYCCHR Complaint. Consequently, Duane Reade's motion to dismiss these claims on grounds of exhaustion is denied.

CONCLUSION

For the foregoing reasons, Duane Reade's motion for partial dismissal is granted in part and denied in part. The Clerk of the Court is directed to remove Docket No. 16 from the Court's list of pending motions.


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