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Hernandez v. City of New York

United States District Court, S.D. New York

January 23, 2015

CITY OF NEW YORK, Defendant.



On November 25, 2014, United States Magistrate Judge Debra Freeman issued a Report and Recommendation (the "Report") recommending that this Court grant Defendant City of New York's ("Defendant" or the "City") motion for summary judgment with respect to all of Plaintiff Liza Hernandez's federal claims, and decline to exercise supplemental jurisdiction over Plaintiff's pendent state and city law claims. (Dkt. #94). Plaintiff has filed objections to the Report. (Dkt. #99). For the reasons set forth below, the Court finds no error in the Report and adopts the Report in its entirety.


The Court presumes the parties' familiarity with the factual allegations of this action, as well as its extensive procedural history, both of which are thoroughly set forth in the Report. ( See Report 2-8 (factual background), 8-14 (procedural history)).[1] In broad summary, Plaintiff claims that (i) she was subjected to discrimination (both disparate treatment and a hostile work environment) by her employer, the City's Office of Chief Medical Examiner ("OCME"), on the basis of her medical conditions; (ii) OCME discriminated against her, and subjected her to improper retaliation, by failing to make reasonable accommodations, and by revoking previously-made reasonable accommodations, that would allow Plaintiff to perform the duties of her position at OCME; and (iii) she ultimately lost her job at OCME because of discrimination against her based on her medical conditions and in retaliation for her complaints about previous discriminatory treatment. ( See Dkt. #33 at ¶¶ 23-85).

On September 16, 2011, Plaintiff filed a complaint against the City of New York and her former supervisor (Dkt. #2); the Second Amended Complaint, the operative complaint in this case, was filed on July 13, 2012 (Dkt. #33). Plaintiff asserted claims under the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et seq. (the "ADA"); the New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297 (the "NYSHRL"); and the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 to 8-131 (the "NYCHRL"); she also included a claim for intentional infliction of emotional distress under New York State law. ( Id. at ¶¶ 86-100).[2]

On March 24, 2014, the City moved for summary judgment with respect to all of Plaintiff's claims. (Dkt. #78-83). Plaintiff filed an affirmation in opposition on July 1, 2014 (Dkt. #89), and the City filed its reply brief on July 25, 2014 (Dkt. #92).

Judge Freeman issued her Report on November 25, 2014. In the course of 42 pages, Judge Freeman recommended that the Court find that: (i) Plaintiff's claim that Defendant had improperly revoked a previous reasonable accommodation for her positional vertigo was time-barred (Report 25-27); (ii) her claim that Defendant had failed to provide a reasonable accommodation in the form of extending her medical leave failed because Plaintiff presented no evidence that a requested, finite leave of absence would have enabled her to return to work ( id. at 27-30); (iii) Plaintiff's claim of discriminatory termination of employment failed for similar reasons ( id. at 33); (iv) her claim of a hostile work environment was time-barred ( id. at 30-33); and (v) Plaintiff's claim of retaliatory discharge failed because of the absence of evidence of a causal connection between her complaints and her termination ( id. at 34-38). Judge Freeman further recommended that the Court decline to exercise supplemental jurisdiction over pendent state and city law claims, noting that the traditional factors of judicial economy, convenience, fairness, and comity pointed toward declination, particularly given the differing legal frameworks involved. ( Id. at 38-40).

Citing 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), Judge Freeman advised the parties that they had 14 days from the issuance of the Report to file written objections. (Report 41). Defendant filed no objections. By letter dated December 12, 2014, Plaintiff sought a six-month extension of the time to file objections (Dkt. #95); the Court granted that request in part, allowing a 30day extension, nunc pro tunc, until January 9, 2015, to file objections (Dkt. #96). Plaintiff filed her objections on January 9, 2015. (Dkt. #99 ("Objections")).


When a district court assesses the report and recommendation of a magistrate judge, the court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). If a party properly objects to a finding in the Report, the Court reviews the finding de novo. 28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to.").[3]

Properly raised objections must be "clearly aimed at particular findings'" in the Report. Vlad-Berindan v. MTA N.Y.C. Transit, No. 14 Civ. 675 (RJS), 2014 WL 6982929, at *1 (S.D.N.Y. Dec. 10, 2014) (quoting Harden v. LaClaire, No. 07 Civ. 4592 (LTS), 2008 WL 4735231, at *1 (S.D.N.Y. Oct. 27, 2008)). In consequence, objections may not be "conclusory or general, " and parties may not simply regurgitate the original briefs to the magistrate judge. Thomas v. Astrue, 674 F.Supp.2d 507, 511 (S.D.N.Y. 2009) (internal quotation marks and citation omitted); see generally Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (finding party who filed cursory objections to magistrate judge's report and recommendation failed adequately to object under Fed.R.Civ.P. 72(b)). Conversely, objections generally may not include new arguments "that were not raised, and thus were not considered, by the magistrate judge." Jackson v. Brandt, No. 10 Civ. 5858 (PAC), 2012 WL 2512015, at *6 (S.D.N.Y. June 29, 2012) (order adopting report and recommendation); see also Berbick v. Precinct 42, 977 F.Supp.2d 268, 273 (S.D.N.Y. 2013) ("A motion referred to a magistrate judge is not a trial run." (alterations and internal quotation marks omitted)).

Absent proper objections, a district court should accept all parts of a report and recommendation that are not clearly erroneous. See Berbick, 977 F.Supp.2d at 273; see also King v. Greiner, No. 02 Civ. 5810 (DLC), 2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009) ("To accept those portions of the report to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." (internal quotation marks and citation omitted)), aff'd, 453 F.Appx. 88 (2d Cir. 2011) (summary order). In this regard, "the Court reviews a party's improper objections, including those that seek a second bite at the apple' by attempt[ing] to relitigate the entire content' of the arguments made before the magistrate judge, only for clear error." Vlad-Berindan, 2014 WL 6982929, at *2 (quoting Thomas, 674 F.Supp.2d at 511) (emphasis in Vlad-Berindan ). In clear error review, a court should reverse a finding only if it is "left with the definite and firm conviction that a mistake has been committed, " and not merely if it "would have decided the case differently." Easley v. Cromartie, 532 U.S. 234, 242 (2001) (internal quotation marks omitted).

"Objections of pro se litigants are generally accorded leniency and construed to raise the strongest arguments that they suggest." Quinn v. Stewart, No. 10 Civ. 8692 (PAE)(JCF), 2012 WL 1080145, at *4 (S.D.N.Y. Apr. 2, 2012) (internal quotation marks omitted). "Nonetheless, even a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal, such that no party be allowed a second bite at the apple' by simply relitigating a prior argument." Pinkney v. Progressive Home Health Servs., No. 06 Civ. 5023 (LTS), 2008 WL 2811816, at *1 (S.D.N.Y. July 21, 2008).


Plaintiff first objects to a number of Judge Freeman's factual findings. As to these objections, the Court makes the following preliminary comments: First, certain of the facts to which Plaintiff now objects were accepted by Judge Freeman precisely because Plaintiff neither contested a statement listed in Defendant's Statement of Undisputed Facts Pursuant to Local Rule 56.1, nor offered a contradictory factual assertion in her opposition papers or in her deposition testimony. ( See Report 2 n.1 (noting that because of Plaintiff's failure to comply with Local Rule 56.1, "the facts summarized in this section are taken from Defendant's Rule 56.1 statement, Plaintiff's opposition affirmation (which was declared to be made under penalty of perjury), and certain evidence in the record, including Plaintiff's deposition testimony")). Second, and perhaps more importantly, Plaintiff misperceives the significance of many of the findings to which she now objects. In particular, Plaintiff overlooks both the solicitude with which Judge Freeman viewed the record[5] and the fact that many of her claims were resolved on procedural bases that existed independently of the facts Plaintiff now challenges.

Addressing Plaintiff's factual objections in turn, the Court notes as follows:

• Plaintiff begins by challenging Judge Freeman's statement in the first paragraph of the Report that "Plaintiff's claim[s] largely arise from the termination of her employment, which occurred after she requested an extension of an approved medical leave." (Objections 1 (citing Report 1)). Put simply, Judge Freeman's focus in this sentence was self-evidently temporal, and not causal, and this statement is an accurate representation of the sequence of events. With particular respect to Plaintiff's challenges that the statement (i) fails to discern the true cause of her termination, (ii) neglects to mention Plaintiff's provision of original documentation to OCME, and (iii) is but one of many grievances Plaintiff lists in her complaint ( see id. ), Judge Freeman addresses each of these challenges, as well as other arguments raised by Plaintiff, in the remaining 41 pages of the Report.
• Plaintiff then levies a series of challenges to statements in the "Factual Background" portion of the Report, none of which succeeds. (Objections 2-3). Plaintiff notes, for instance, that the August 11, 2009 letter from Dr. Emannuel Decade that was submitted in support of her last request for an extension of leave referenced the need for "further counseling services." (Dkt. #80 at Ex. PP). From this, she argues that Judge Freeman misstated the doctor's letter in her Report. (Objections 2). A careful review of the Report, however, discloses that Judge Freeman understood, and properly quoted, the contents of the letter. ( See Report 8, 29-30). More broadly, Judge Freeman accepted the contents of each of the letters from Plaintiff's medical and treating professionals, but found - correctly - that none of them provided the requisite certainty as to when, if ever, Plaintiff could return to work.
• Plaintiff also quibbles with Judge Freeman's inclusion of the task of retrieving files within Plaintiff's job duties. (Objections 2). This inclusion almost certainly occurred, however, because Plaintiff failed to object to Defendant's Statement of Undisputed Facts. Moreover, inasmuch as Plaintiff had consistently argued that OCME initially accommodated her positional vertigo by allowing her to obtain assistance if a task required climbing ladders or lifting heavy objects, but then revoked that accommodation, it was reasonable for Judge Freeman to conclude that Plaintiff's job duties might involve climbing ladders to retrieve files. In any event, Plaintiff's claims of failure to provide a reasonable accommodation were found to be time-barred.
• Plaintiff takes issue with Judge Freeman's statement that "[i]n or about February 2009, after Plaintiff made an email complaint against [her supervisor, Ashie] Henry, Defendant assigned Plaintiff a new supervisor, Cynthia Paulin[.]'" (Objections 2 (citing Report 5)). Plaintiff notes that she began complaining about Henry in August 2008. ( Id. ). As it happens, this objection is contradicted by Plaintiff's own testimony and submissions, which indicate that her relationship with Henry began to deteriorate in September 2008. ( See, e.g., Dkt. #33 at ¶¶ 6, 29 (Second Amended Complaint)). Again, however, Plaintiff is missing the forest for the trees; Judge Freeman was not purporting to identify the first of Plaintiff's many complaints to OCME officials, but rather to approximate the date on which her supervisor changed.
• Plaintiff infers from the Report a finding that no formal complaint was made, to which she takes offense, and in response to which she notes that "[i]t is not required that an employee, current or former, meet in person to make a complaint[.]" (Report 3 (emphasis in original)). The latter statement may be true, but it is also irrelevant; Judge Freeman noted in great detail, at pages 36 through 37 of her Report, the many occasions on which Plaintiff had complained, formally or informally.

Plaintiff objects wholesale to Judge Freeman's description of the discovery disputes that preceded the instant motion (Objections 4), and offers instead an affidavit in which she complains about Judge Freeman's failure to impose sanctions on Defendant for ostensible discovery abuses ( id. at 19-25). To the extent Plaintiff is seeking to present an alternate history of the conduct of discovery in this case, the Court rejects this version in favor of the procedural history outlined by Judge Freeman, which more accurately tracks the docket in this case. To the extent that Plaintiff seeks to appeal from the discovery rulings she outlines in her affirmation, the Court rejects her application as untimely, since the issues arose between November 2013 and January 2014. See Fed.R.Civ.P. 72(a) ("When a pretrial matter not dispositive of a party's claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision. A party may serve and file objections to the order within 14 days after being served with a copy. A party may not assign as error a defect in the order not timely objected to.").[6]

Plaintiff's objections to Judge Freeman's legal conclusions are far less detailed. At page 4 of her Objections, Plaintiff contends that "[t]here are genuine issues of material fact[] that exist[], " and at page 5 she contends that "[s]ummary [j]udgment should be denied and all claims that I have made are 100% truthful." (Objections 4-5). These are not proper objections. That said, the Court has reviewed Judge Freeman's comprehensive Report, and finds it to be well reasoned and grounded in fact and law. Plaintiff can advance no valid factual or legal challenge to Judge Freeman's conclusion that Plaintiff's claims for failure to make a reasonable accommodation for her positional vertigo and for hostile work environment were time-barred. Plaintiff similarly cannot dispute the fact that, while there may have been much correspondence between and among Plaintiff and her treating professionals and OCME, none of that evidence (in particular, none of the communications in July and August 2009) gave any indication as to when Plaintiff could resume her duties at OCME; as such, Defendant has correctly identified the absence of a genuine issue of material fact as to whether Plaintiff was a "qualified individual" under the ADA. (Report 27-30).

There are two areas for which Plaintiff provides more than a conclusory objection. However, neither provides a basis for departing from Judge Freeman's recommendation. First, Plaintiff objects to the Report's statement that she is procedurally barred from bringing a claim for religious discrimination, and counters that she had in fact exhausted her remedies with the EEOC. (Objections 3; see Report 9-10 (recounting prior motion practice)). The record does not bear out Plaintiff's claims of exhaustion. More importantly, however, Judge Freeman denied Plaintiff leave to amend in an Opinion and Order dated March 11, 2013 (Dkt. #44), where she specifically concluded that Plaintiff would not be permitted to amend her complaint to add a charge of discrimination based on her religion. Plaintiff's time to appeal from that decision has long since lapsed, and the Court will accordingly not consider her application here. See Fed.R.Civ.P. 72(a).[7]

Finally, Plaintiff claims that there is evidence of a causal connection between her requests to follow up on an earlier complaint of discrimination upon her return to work and her ultimate termination. (Objections 5). This is, of course, a retread of arguments presented to Judge Freeman ( see Report 36-37 (outlining Plaintiff's arguments)), and thus not a proper objection. That said, after reviewing the record in its entirety, the Court agrees with Judge Freeman that no reasonable jury could infer a causal link between Plaintiff's complaints 2014 either considered in their totality or considering the complaints filed closest to her termination 2014 and Plaintiff's termination. Plaintiff has not, and cannot, raise a genuine issue of material fact as to whether her complaints were a motivating factor in her termination.[8] As Plaintiff readily admits, she filed numerous complaints throughout 2008 and 2009, and yet none resulted in an adverse employment action against Plaintiff. ( See Report 36-37 (listing complaints)). Even after she went out on medical leave in March 2009, Plaintiff continued to advise OCME personnel of pending complaints and forthcoming complaints concerning Henry; with full knowledge of those complaints, Defendant not only did not terminate Plaintiff's employment, but repeatedly granted her requests for extensions of leave. ( See Dkt. #80, Ex. V-Z, AA-JJ). The fact that OCME subsequently declined to extend Plaintiff's leave further, in the absence of any documentation that indicated a definite date on which Plaintiff could return to work, can in no way be traced to her complaints.

Plaintiff fares no better in limiting her causal connection argument to her communications with OCME personnel immediately prior to her termination, including her July 30, 2009 letter to Human Resources Director Jan English (Objections 26; Dkt. #80, Ex. WW), and her August 12, 2009 email to Deputy Commissioner of Finance and Administration Thomas Lintern (Dkt. #80, Ex. M). While these communications may be closer in time to Plaintiff's termination, they are no different in kind from the complaints that she made about Henry from September 2008 through March 27, 2009, her last day in the office. Particularly when these more recent complaints are considered alongside the extensive, contemporaneous communications concerning the termination date of Plaintiff's leave and the insufficiency of the documentation from Plaintiff and her treating professionals, the Court must agree with Judge Freeman that Plaintiff's complaints were not a "motivating factor" in her termination.

For all of these reasons, the Report is adopted in its entirety.


Defendant's motion for summary judgment is GRANTED as to Plaintiff's federal claims, and those claims are DISMISSED WITH PREJUDICE. Because the Court declines to exercise supplemental jurisdiction over Plaintiff's pendent state and city law claims, those claims are DISMISSED WITHOUT PREJUDICE to permit Plaintiff's refiling of them in state court.

The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case.



In this employment discrimination action brought pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"); the New York State Human Rights Law, N.Y. Exec. Law §§ 292 et seq. ("NYSHRL"); the New York City Human Rights Law, N.Y.C. Code §§ 8-107 et seq. ("NYCHRL"); and New York common law, prose plaintiff Liza Hernandez ("Plaintiff') seeks damages and equitable relief from her former employer, the City of New York ("Defendant"), for unlawful discrimination against her on the basis of disability, retaliation for opposing disability discrimination, and intentional infliction of emotional distress. Plaintiffs claims largely arise from the termination of her employment, which occurred after she requested an extension of an approved medical leave. ( See generally Second Amended Complaint, dated Mar. 25, 2013 ("Am. Compl.") (Dkt. 45).)

Currently before the Court is Defendant's motion for summary judgment (Dkt. 78), which has been referred to me for a report and recommendation. For the reasons that follow, I recommend that Defendant's motion be granted with respect to all of Plaintiff's federal claims. I further recommend that the Court decline to exercise supplemental jurisdiction over Plaintiff's state and city law claims, and that they therefore be dismissed without prejudice to Plaintiff's filing those claims in state court.


A. Factual Background[1]

1. Plaintiff's Medical Conditions and Initial Employment with Defendant

Plaintiff claims that she was subjected to discriminatory treatment on the basis of her medical conditions while she was employed by Defendant, and that her employment was eventually terminated because of those conditions and for opposing discriminatory treatment. Plaintiff's medical conditions, which Defendant does not dispute, included a perforated eardrum (leading to hearing loss, ear infections, and positional vertigo), depression and anxiety, anemia, and migraine headaches.[2] At or near the time of her termination, Plaintiff also reported that an MRI had revealed that she had a posterior fossa arachnoid cyst ( see Declaration of Kathryn E. Martin, Esq., dated Mar. 24, 2014 ("Martin Decl.") (Dkt. 80), Ex. LL), which can apparently cause some of the symptoms she had reported earlier, such as hearing loss, vertigo, and headaches.[3]

Plaintiff began working as a clerical associate in the Records Department of the New York City Office of the Chief Medical Examiner ("OCME") on or about July 7, 2008. (Def. 56.1 Stmt. ¶ 2.) From the time she began her employment until approximately February 2009, Plaintiff was supervised by Ashie Henry ("Henry"). (Martin Decl., Ex. B (Transcript of Deposition of Plaintiff, conducted Aug. 15, 2013 ("Pl. Dep.")), at 46:1-17.) As a clerical associate, Plaintiff's duties included responding to autopsy report requests and subpoenas, which required her to retrieve and photocopy the requested files, as well as to prepare "business record" certifications for subpoenaed files. ( Id., at 44:1-15, 46:7-22.) She was also required to retrieve files for Henry. ( Id., at 47:23-49:2.)

In her initial meeting with Henry, Plaintiff informed her that she could not climb ladders or lift heavy objects due to her positional vertigo, and Henry told Plaintiff that a college aide could assist Plaintiff in performing those tasks when necessary. ( Id., at 62:19-23.) Also, due to a hand injury, Plaintiff requested to be allowed to use paper time cards instead of a hand scanner at work, and Defendant approved her request. ( Id., at 62:9-19; Def. 56.1 Stmt. ¶ 11.) There was little conflict during Plaintiff's first few months of employment with Defendant. ( See Pl. Dep., at 110:23-25.)

2. Change in the Work Environment

In or about September 2008, however, Plaintiff's relationship with Henry soured. Around that time, Plaintiff approached Henry with a proposal that, according to Plaintiff, was intended to improve efficiency in the Records Department. Plaintiff suggested that, when responding to requests from the District Attorney's office, the Records Department send a certified copy of the requested file instead of first sending an uncertified copy and then, upon receipt of a subpoena, sending a certified copy. ( Id., at 97:11-20.) Plaintiff alleges that Henry not only rejected this suggestion, but responded aggressively, telling her not to "ask any god damn questions, " and to "do as [she was] told." ( Id., at 97:21-24.) Plaintiff then approached individuals in the legal department to share her idea. ( Id., at 97:24-99:17.) Plaintiff claims that, upon learning that Plaintiff had spoken with staff in the legal department, Henry's demeanor toward Plaintiff "just changed." ( Id., at 100:9.)

Plaintiff contends that Henry became "belligerent[, ] unprofessional, discriminatory, [and] abusive." (Pl. Aff., at 6).[4] According to Plaintiff, Henry's abusive behavior included cursing at Plaintiff (Pl. Dep., at 97:21-24, 100:7-8), insisting that she complete tasks that were against department protocol ( id., at 100:12-101:10), demanding that she review suicide case files for no legitimate reason (Pl. Aff., at 8), referring to her religion (Mormonism) as a cult (Pl. Dep., at 101:17-20), constantly interrupting her work ( id., at 103:11-105:6), denying her requests to attend training sessions ( id., at 106), and accusing her of "wanting [Henry's] job" ( id., at 107:15-17). On December 1, 2008, Henry also issued a memorandum stating that Plaintiff's attendance and ...

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