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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 ...

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