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Clemmer v. Fordham Bedford Cmty. Servs.

United States District Court, S.D. New York

January 16, 2015

GONZALBA CUEVAS CLEMMER, Plaintiff,
v.
FORDHAM BEDFORD COMMUNITY SERVICES and JOHN GARCIA, EX. DIRECTOR, Defendants

Gonzalba Cuevas Clemmer, Plaintiff, Pro se, Bronx, N.Y. USA.

For Fordham Bedford Community Services, John Garcia, Ex. Director, Defendants: Robyn Leigh Silvermintz, LEAD ATTORNEY, Winget Spadafora & Schwartzberg, LLP, New York, N.Y. USA.

MEMORANDUM AND ORDER

ANALISA TORRES, United States District Judge.

In this employment discrimination action, Plaintiff pro se, Gonzalba Cuevas Clemmer, alleges that Defendants, Fordham Bedford Community Services (" FBCS11) and John Garcia, violated Title VII of the Civil Rights Act of 1964 ('Title VII*1), 42 U.S.C. § § 2000e et seq., the Age Discrimination in Employment Act of 1967 (" ADEA"), 29 U.S.C. § § 621 et seq., the Americans with Disabilities Act of 1990 (" ADA11), 42 U.S.C. § § 12112 et seq., the New York State Human Rights Law (" NYSHRL11), N.Y. Exec. Law § § 290 et seq., and the New York City Human Rights Law (" NYCHRL"), N.Y.C. Admin. Code § § 8-101 et seq . Defendants move to dismiss all claims other than the ADA claim against FBCS pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, Defendants' motion is GRANTED.

BACKGROUND

Plaintiff is a former employee of FBCS. Compl. ¶ 11.E, ECF No. 2. She is fifty-nine years old and suffers from " feet/leg problems, migraine[s], thyroid[], [problems], [and] fibromyalgia." Id. II.D. Prior to her termination on July 30, 2012, Plaintiff worked for FBCS for ten years. Id. II.E. Plaintiff contends that, based on her age and disability or perceived disability, Defendants unlawfully: (1) terminated Plaintiff's employment; (2) failed to accommodate Plaintiff's disability; (3) retaliated against Plaintiff; and (4) verbally harassed Plaintiff. Id. ¶ ¶ II.A, D.

On March 14, 2013, Plaintiff filed a complaint with the New York State Division of Human Rights (the " NYSDHR") that charged FBCS with " an unlawful discriminatory practice relating to employment in violation of [the NYSHRL and the ADA] because of disability, opposed discrimination/retaliation." Silvermintz Deck, Ex. B at 2-3, ECF No. 10-2. Specifically, Plaintiff alleged, inter alia, that the director of FBCS ( i.e., John Garcia): (1) " would harass [Plaintiff] verbally"; (2) " would go to [Plaintiff's] office to see what messages [she] was writing and to whom"; (3) " would give [Plaintiff] ultimatums and refuse[] to give [Plaintiff] permission to recuperate from [her] state of health"; (4) " gave [Plaintiff] negative evaluations"; and (5) " refused to give [Plaintiff] . . . training." Id. Plaintiff " authorize[d] [the NYSDHR] to accept [her] verified complaint on behalf of the U.S. Equal Employment Opportunity Commission" (the " EEOC"). Id. at 3.

On November 19, 2013, after conducting an investigation, the NYSDHR issued a determination and order, finding " NO PROBABLE CAUSE to believe that [FBCS] has engaged in or is engaging in the unlawful discriminatory practice complained of ' and that " [a]ll actions taken in relation to [Plaintiff's] employment were motivated by legitimate and nondiscriminatory reasons and not discriminator)' animus." Silvermintz Deck, Ex. C at 2-3, ECF No. 10-3. Accordingly, the NYSDHR dismissed Plaintiff's complaint. Id. at 3.

On January 8, 2014, the EEOC notified Plaintiff that it " ha[d] adopted the findings of the state or local fair employment practices agency that investigated [Plaintiff's] charge" ( i.e., the NYSDHR) and that Plaintiff had the right to sue " the respondent(s) under federal law based on [her] charge in federal or state court" within ninety days. Compl. 6. Plaintiff filed the complaint in this action on March 25, 2014.

DISCUSSION

I. Standards of Review

A. Rule 12(b)(1)

" A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). To survive a Rule 12(b)(1) motion to dismiss, the plaintiff " has the burden of proving by a preponderance of the evidence that [subject matter jurisdiction] exists." Id. On such a motion, " the district court must take all uncontroverted facts in the complaint. . . as true, and draw all reasonable inferences in favor of the party asserting jurisdiction." Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). However, " [w]here jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits." Id. (alteration in original) (internal quotation marks and citation omitted).

B. Rule 12(b)(6)

To survive a Rule 12(b)(6) motion to dismiss, " a complaint must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A plaintiff is not required to provide " detailed factual allegations" in the complaint, but must assert " more than labels and conclusions." Twombly, 550 U.S. at 555. Ultimately, the " [f]actual allegations must be enough to raise a right to relief above the speculative level." Id. On a Rule 12(b)(6) motion, the court may consider only the complaint, documents attached to the complaint, matters of which a court can take judicial notice, or documents that the plaintiff knew about and relied upon. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). The court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the non-movant. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).

C. Rule 56

Summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure is appropriate when the record " shows that there is no genuine dispute as to any material fact and the [moving party] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A genuine dispute exists " if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Material facts are those which, under the governing law, may affect the outcome of a case. Id. In ruling on a motion for summary judgment, all evidence must be viewed in the light most favorable to the non-moving party, Overton v. N.Y.State Div. of Military & Naval Affairs, 373 F.3d 83, 89 (2d Cir. 2004), and the court must " resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought, " Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir. 2004).

D. Pro Se Submissions

The court must " liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest arguments they suggest." Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (internal quotation marks and citations omitted). " The policy of liberally construing pro se submissions is driven by the understanding that implicit in the right to self-representation is an obligation on the part of the court to make reasonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training." Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (internal quotation marks, brackets, and citation omitted). Although the court is " obligated to draw the most favorable inferences that [a pro se plaintiff's] complaint supports, [the court] cannot invent factual allegations that [the plaintiff] has not pled." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). " [T]he court should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal quotation marks and citation omitted).

II. Title VII and ADEA Claims

Defendants contend that the Title VII and ADEA claims must be dismissed for Plaintiff's failure to exhaust administrative remedies. Def. Mem. 4-5. The Court agrees.[1] " Under both Title VII and the ADEA, a claimant may bring suit in federal court only if she has filed a timely [charge] with the EEOC [or an equivalent state agency] and obtained a right-to-sue letter." Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001). Title VII and ADEA claims not raised in a charge may, however, " be brought in federal court if they are 'reasonably related' to the claim filed with the agency." Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (citing Butts v. City of New York Dep't of Hous. Pres, & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)). The Second Circuit has recognized three situations in which a claim may be found to be " reasonably related": (1) " where 'the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination'"; (2) " where the complaint is 'one alleging retaliation by an employer against an employee for filing an EEOC charge'"; and (3) " where the complaint 'alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge.'" Terry v. Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003) (quoting Butts, 990 F.2d at 1402-03).

Applying the foregoing principles, the Court concludes that Plaintiff cannot assert Title VII or ADEA claims in this action. Plaintiff's charge ( i.e., the verified complaint that Plaintiff filed with the NYSDHR on March 14, 2013) asserts only disability discrimination claims under the NYSHRL and the ADA. Silvermintz Decl., Ex. B. The charge does not mention Title VII or the ADEA, nor does it allege discrimination on the basis of race, color, gender, religion, national origin, or age. Moreover, these claims are not " reasonably related" to Plaintiff's disability discrimination claims. See, e.g., DiProjetto v. Morris Protective Serv., 306 F.App'x 687. 688 (2d Cir. 2009) (summary order) (race, gender, and disability discrimination claims not " reasonably related" to national origin discrimination claim in EEOC charge); Hawkins v. Wegmans Food Market, Inc., 224 F.App'x 104, 105 (2d Cir. 2007) (summary order) (race and age discrimination claims not " reasonably related" to gender and disability claims in EEOC charge); Gronowicz v. Coll. of Staten Island, 359 F.Supp.2d 243, 248 (N.D.N.Y. 2005) (" Courts in the Second Circuit have generally held that claims alleging discrimination based upon a protected classification which are different than the protected classification asserted in administrative filings are not reasonably related."). Accordingly, the Title VII and ADEA claims are DISMISSED.

III. ADA Claim Against Garcia

Defendants also argue that the ADA claim against Garcia must be dismissed because there is no individual liability under the ADA. Def. Mem. 5-8. The Court agrees. See, e.g., Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir. 2010) (" [I]n the context of employment discrimination, the retaliation provision of the ADA . . . cannot provide for individual liability."); Ivanov v. N.Y.C. Transit Auth., 13 Civ. 4280, 2014 WL 2600230, at *5 (S.D.N.Y. June 5, 2014) (" [A]n individual is . . . not an 'employer' under the ADA and, therefore, may not be liable for disability discrimination."); Nelson v. City of New York, 11 Civ. 2732, 2013 WL 4437224, at *14 (S.D.N.Y. Aug. 19, 2013) (" It is well established that there is no individual liability under the ADA . . . ."). Accordingly, the ADA claim against Garcia is DISMISSED.

IV. NYSHRL and NYCHRL Claims

Finally, Defendants contend that Plaintiff's NYSHRL and NYCHRL claims must be dismissed because, prior to filing the complaint in this action, Plaintiff brought the same claims before the NYSDHR. Def. Mem. 11-13. In accordance with Section 297(9) of the NYSHRL and Section 8-502(a) of the NYCHRL, " a person claiming to be aggrieved by an unlawful discriminatory practice may seek relief either from a court of appropriate jurisdiction or from the [NY]SDHR or any local commission on human rights, but not both." Clements v. St. Vincent's Hosp. & Med. Ctr., 919 F.Supp. 161, 164 (S.D.N.Y. 1996); accord N.Y. Exec. Law § 297(9) (" Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction . . . unless such person had filed a complaint hereunder or with any local commission on human rights . . . ."); N.Y.C. Admin Code § 8-502(a) (" [A]ny person claiming to be aggrieved by an unlawful discriminatory practice . . . shall have a cause of action in any court of competent jurisdiction . . . unless such person has filed a complaint with the city commission on human rights or with the [NYSDHR] with respect to such alleged unlawful discriminatory practice . . . ."). Indeed, once an individual brings a discrimination claim before the NYSDHR, she is barred from pressing the same claim under the NYSHRL or the NYCHRL in state or federal court unless the NYSDHR " has dismissed [the claim] on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled." N.Y. Exec. Law § 297(9); see also N.Y.C. Admin Code § 8-502(b); York v. Ass'n of Bar of City of New York, 286 F.3d 122, 127 (2d Cir. 2002); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000); Moodie v. Fed. Reserve Bank of New York, 58 F.3d 879, 884 (2d Cir. 1995). " The election of remedies bar also precludes consideration of any claim--whether brought under the NYSHRL or the NYCHRL--arising out of the same incidents] on which [the] [NY]SDHR complaint was based." Higgins v. NYP Holdings, Inc., 836 F.Supp.2d 182, 188 (S.D.N.Y. 2011).

Here, Plaintiff filed a complaint with the NYSDHR that asserted disability discrimination claims against FBCS under the NYSHRL and the ADA. Silvermintz Decl., Ex. B. The NYSDHR subsequently dismissed the complaint, finding " NO PROBABLE CAUSE to believe that [FBCS] has engaged in or is engaging in the unlawful discriminatory practice complained of." Silvermintz Decl., Ex. C. Plaintiff then filed the complaint in this action, which, in contravention of Sections 297(9) and 8-502(a), includes NYSHRL and NYCHRL claims based on the same allegations of disability discrimination. Accordingly, the NYSHRL and NYCHRL disability discrimination claims are DISMISSED.[2]

Construing the complaint liberally, however, as the Court must, Bertin, 478 F.3d at 491, it appears that Plaintiff also asserts age discrimination claims under the NYSHRL and the NYCHRL. See Compl. 1 (indicating that " [t]his action is brought for discrimination in employment pursuant to, " inter alia, the NYSHRL and the NYCHRL, which both protect against age discrimination); id. at II.D (claiming that " Defendant(s) discriminated against [Plaintiff] based on [her]" age); id. at II.E (alleging that Plaintiff's supervisor " retaliated] [against] and harass[ed] [Plaintiff] with phrases like: 'We will need young people'"). Because it is not clear whether the age discrimination claims, which Plaintiff did not include in her administrative charge, arise out of the " same incident[s]" or " operative events" presented to the NYSDHR, Higgins, 836 F.Supp.2d at 188-89, the Court declines to find that the election of remedies bar precludes Plaintiff from pursuing these claims in this action.

Nevertheless, pursuant to its authority under 28 U.S.C. § 1915(e)(2), the Court concludes that the NYSHRL and NYCHRL age discrimination claims must be dismissed. See § 1915(e)(2) (" [T]he court shall dismiss the case at any time if the court determines that . . . the action . . . fails to state a claim on which relief may be granted ...."); Graham v. Bank of Am., 432 F.App'x 41, 41 (2d Cir. 2011) (summary order) (explaining that " a district court must dismiss an action" brought in forma pauperis " when the complaint fails to state a claim on which relief may be granted, " and may do so sua sponte ). The only factual allegation in the complaint concerning age discrimination is that Plaintiff's supervisor " retaliate[ed] [against] and harass[ed] [Plaintiff] with phrases like: 'We will need young people' (talking about a new city funding grant)." Compl. ¶ II.E. This allegation standing alone is plainly insufficient to state a claim. See Twombly, 550 U.S. at 555. Accordingly, the NYSHRL and NYCHRL age discrimination claims are DISMISSED with leave to file an amended complaint to add allegations in support of these claims.

CONCLUSION

For the reasons stated above, Defendants' motion is GRANTED. All claims other than the ADA claim against FBCS are DISMISSED. By February 16, 2015, Plaintiff may file an amended complaint to add allegations of age discrimination, if any.

Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies that any appeal from this order would not be taken in good faith and, therefore, in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).

The Clerk of Court is directed to terminate the motion at ECF No. 9 and to mail a copy of this order and all unpublished decisions cited therein to Plaintiff pro se .

SO ORDERED.


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