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Kleinman v. Fashion Institute of Technology

United States District Court, S.D. New York

July 14, 2017



          KATHERINE POLK FAILLA United States District Judge.

         Plaintiff Laura Kleinman suffers from a spinal condition that limits her mobility. Since 2011, she has worked as a clinician in the Counseling Center at Defendant Fashion Institute of Technology. In 2013, Plaintiff's spinal condition worsened, and she took a five-day leave of absence from work in order to undergo medical testing. Upon returning to the Counseling Center, Plaintiff alleges, her colleagues and supervisors began to harass and discriminate against her because of her disability. And Plaintiff claims that this hostility only increased after she complained to Defendant's administration.

         In June 2016, Plaintiff sued Defendant, seeking relief under several federal, state, and local statutes. About a month later, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (the “EEOC”), claiming that Defendant had violated the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 to 12213 (the “ADA”). Plaintiff thereafter filed an Amended Complaint, and later a Second Amended Complaint, in which she alleged that Defendant had created a hostile work environment and retaliated against her in violation of the ADA.

         Defendant has moved to dismiss Plaintiff's Eighth Cause of Action (her ADA hostile work environment claim) and Ninth Cause of Action (her ADA retaliation claim) under Federal Rule of Civil Procedure 12(b)(6). Defendant argues that these two claims are unexhausted, untimely, and in any event, meritless. For the reasons that follow, the Court grants Defendant's motion.[1]


         A. Factual Background

         The events giving rise to Plaintiff's dispute with Defendant transpired in three phases. Plaintiff's troubles began in 2013, when she returned from her five-day medical leave and encountered various obstacles in her efforts to secure tenure. They intensified in 2014 and 2015, after Plaintiff reported her peers' and superiors' mistreatment of her to Defendant's administration. And they culminated in 2015 and 2016, when Plaintiff applied for a one-year medical leave, a process that Plaintiff alleges was fraught with discrimination.

         1. Plaintiff's Five-Day Medical Leave and Subsequent Tenure Process

         Defendant is a “college of art and design, business[, ] and technology” located in New York City. (SAC ¶ 8). In October 2011, Defendant hired Plaintiff to work as a clinician in its Counseling Center. (Id. at ¶ 9). Plaintiff remains employed at Defendant to this day. (Id. at ¶ 60).

         In 2013, Plaintiff took a five-day leave of absence “in order to undergo invasive neurological testing” for her spinal condition. (SAC ¶ 11). Before taking this leave, Plaintiff “had been unanimously reappointed in five previous Tenure and Promotion [ ] rounds.” (Id. at ¶ 13). But upon returning to work, Plaintiff encountered “increased scrutiny from her peers and colleagues, ” which Plaintiff interprets as a “reaction to her disability and associated medical treatment.” (Id. at ¶ 14). And Plaintiff alleges that this hostility “reached a fever pitch in the weeks leading to her final tenure meeting.” (Id.).

         At a staff meeting in December 2013, Plaintiff's peers criticized her for not explaining clearly why she had been absent from work for five days. (SAC ¶ 15). Plaintiff then “explained her medical status in detail.” (Id. at ¶ 16). In response, “the Chair of [Plaintiff's] Tenure and Promotion Committee [ ] openly expressed fear that” if Plaintiff were absent in the future, the Counseling Center would “‘get[] stuck' with a staff member who was unable to perform her job.” (Id.).

         The harassment escalated quickly. By Plaintiff's admission, her spinal condition often causes her to arrive to work “five to 20 minutes late in the morning.” (SAC ¶ 19). Plaintiff has “consistently” sought to lessen the effects of her tardiness by, for example, “working overtime” and “factoring any delays into her calendar.” (Id.). During the weekend following the December 2013 staff meeting, a Counseling Center “staff member sent several confrontational emails critiquing [Plaintiff's] performance, particularly her purported issues with punctuality.” (Id. at ¶ 17). And after Plaintiff received these emails, the Counseling Center's receptionist began tracking Plaintiff's “arrival times and session lengths in order to build a record against [Plaintiff's] performance.” (Id. at ¶ 18).

         Plaintiff fared no better when it came time to prepare her tenure application. Plaintiff was given deadlines (she does not say by whom) “only to have them changed last minute.” (SAC ¶ 21). And Plaintiff was “instructed to submit” documents (again, Plaintiff does not say by whom) that she later learned were not necessary for her tenure application. (Id.). To make matters worse, Plaintiff received no guidance during her tenure application process - unlike “her non-disabled colleague, ” Dr. Jen Mai Wong, who met with “advisors” “multiple times.” (Id. at ¶¶ 22, 24).

         Plaintiff came up for tenure in March 2014. (SAC ¶ 23). Although Plaintiff had never before been criticized for her work at the Counseling Center, the members of Plaintiff's Tenure and Promotion Committee criticized her job performance and “her presentation skills.” (Id.). And although Plaintiff claims that her on-the-job performance and tenure presentation were virtually identical to Dr. Wong's, the Tenure and Promotion Committee gave Plaintiff comparatively lower marks. (Id. at ¶ 24). Ultimately, the Tenure and Promotion Committee recommended that Plaintiff not receive tenure. (Id. at ¶¶ 25-26).

         Defendant's administration, however, overrode the Tenure and Promotion Committee's recommendation. (SAC ¶ 26). In May 2014, Plaintiff received tenure. (Id.). Since then, Plaintiff has suffered various forms of harassment at work: “[S]everal personal items have been stolen from [Plaintiff's] office and computer desktop, ” and Plaintiff's “colleagues have stopped delivering messages to her from her students.” (Id. at ¶¶ 27-28).[2]

         2. Plaintiff's Report of Harassment to Defendant's Administration

         On December 2, 2014, Plaintiff wrote a letter to Defendant's Acting Vice President, Kelly Brennan, “and other members of [Defendant's] administration.” (SAC ¶ 29). In the letter, Plaintiff “reported the harassment and discrimination she [had] faced”; asked “that Defendant provide her with an alternate” Tenure and Promotion Committee; and requested that Defendant “educate the three members of [Plaintiff's] department” who served on Plaintiff's Tenure and Promotion Committee “about the discriminatory bias that they demonstrated in [Plaintiff's] tenure evaluation.” (Id.).

         On January 9, 2015, Plaintiff discussed her grievances with Griselda Gonzalez, Defendant's Affirmative Action Officer and Acting Director of Compliance. (SAC ¶ 30). Gonzalez said “that she would immediately email [Plaintiff] a form that would permit [an] investigation” into Plaintiff's mistreatment “to commence”; Gonzalez added that the investigation “would take six to eight weeks.” (Id.).

         Gonzalez did not send the form to Plaintiff until January 29, 2015. (SAC ¶ 30). And Defendant did not initiate its investigation into Plaintiff's claims until the middle of March 2015. (Id. at ¶¶ 31-32). While Plaintiff's complaints languished, Plaintiff suffered “escalating abuse”: Unnamed individuals “disparag[ed] [Plaintiff] on, tamper[ed] with her patients' appointments[, ] and … ma[de] pointed remarks in meetings that were designed to be hurtful and divisive.” (Id. at ¶ 33).

         Dissatisfied with Defendant's refusal to investigate her complaints, Plaintiff retained counsel. (SAC ¶ 34). On April 1, 2015, Plaintiff's attorney wrote to Brennan to inform her that Plaintiff had hired a lawyer. (Id.). In response, Plaintiff alleges, “the retaliation against [Plaintiff] only escalated.” (Id.).

         On June 17, 2015, Gonzalez reported to Plaintiff that Defendant “had concluded that [Plaintiff] was unfairly treated and wrongfully evaluated.” (SAC ¶ 36). Defendant, however, refused to assign an alternate Tenure and Promotion Committee to evaluate Plaintiff. (Id. at ¶ 37). Nor did Defendant agree “to confront and counsel the” members of Plaintiff's Tenure and Promotion Committee in order to “counsel[] [them] on their discriminatory animus.” (Id. at ¶ 38). By Plaintiff's account, in the face of her persistent complaints, “the only countermeasure [Plaintiff] has been offered is the opportunity to continue complaining.” (Id. at ¶ 41).

         3. Plaintiff's Application for a One-Year Medical Leave

         According to Plaintiff, these long-running employment issues took a toll on her health, and in August 2015, she was “forced … to take a leave of absence” from work. (SAC ¶ 45). The Second Amended Complaint does not disclose clearly how long this leave lasted, although Plaintiff refers to it as “short-term.” (Id. at ¶ 56). Defendant “unlawfully interfered with” this short-term leave “by, among other things, authorizing a peer of [Plaintiff's] … to contact [Plaintiff] in October 2015 to inquire about [Plaintiff's] condition and when she [would] be able to return to work.” (Id. at ¶ 46).

         That same month, Plaintiff attempted to extend her leave and “obtain approval of a one-year leave of absence.” (SAC ¶ 47). Defendant's Human Resources Department directed Plaintiff to contact Defendant's Dean of Students, Dr. Shadia Sachedina, to discuss Plaintiff's request for a medical leave. (Id.). Plaintiff e-mailed Dr. Sachedina, but did not hear back from her until November 20, 2015. (Id. at ¶¶ 47-48). In her response, Dr. Sachedina “interpreted [Plaintiff's] email as a tender of her resignation and asked that [Plaintiff] send a formal resignation letter.” (Id. at ¶ 48). That interpretation, Plaintiff claims, was “yet another effort to hinder [Plaintiff's] efforts to obtain medical leave.” (Id.). Eric Odin and Cherese Hill-Cartagena (both of whom, the Court surmises, work for Defendant) further hindered Plaintiff's efforts by giving her “inconsistent instructions and ask[ing] for additional documentation, despite the fact that [Plaintiff] had easily satisfied the requirements for taking a one-year leave of absence outlined in her employment contract.” (Id. at ¶ 53).

         In early 2016, while Plaintiff's application for a one-year medical leave remained unresolved, several of Plaintiff's colleagues at the Counseling Center and members of Defendant's administration “attended a colleague's retirement party.” (SAC ¶ 50). At the party, the Counseling Center's “former director and other members of [Defendant's] [a]dministration spoke about [Plaintiff's] leave of absence, spread rumors that she was ‘suing [Defendant], ' and spoke disparagingly about [Plaintiff's] character and integrity.” (Id. at ¶ 51). Plaintiff “came to learn that these rumors had been instigated by the Counsel[ing] Center's current Director, ” who was “charged with determining whether [Plaintiff's] application for leave was approved.” (Id. at ¶¶ 51-52). Plaintiff, who did not attend the party, does not explain how or when she learned of what transpired at the party. (See id.).

         In May 2016 - after Plaintiff “made clear” that she intended to sue Defendant - Defendant granted Plaintiff's request for a one-year medical leave. (SAC ¶ 56). In the lead-up to that decision, Plaintiff “endure[d] the specter of obtaining her own care in the ‘open-market, '” a fear vivified by Plaintiff's knowledge that the Counseling Center's Director had expressed “animosity and disdain for [Plaintiff] and her protected activity.” (Id. at ¶ 55). Plaintiff's mounting medical bills - over $1, 200 per week - coupled with her “stress of not knowing whether [Defendant] would continue to provide [Plaintiff] health insurance, ” added to Plaintiff's concerns. (Id. at ¶ 57).

         Plaintiff alleges that her troubles continued into her medical leave. In October 2016, members of Defendant's faculty received ballots “to vote regarding whether to ratify [Defendant's] new collective bargaining agreement with the United College Employees.” (SAC ¶ 58). Plaintiff alleges that “[i]n exchange for casting their votes, faculty members were promised retroactive pay and a possible $1, 000 signing bonus.” (Id.). Defendant never sent Plaintiff a ballot, which Plaintiff interprets as “a clear effort to further retaliate and discriminate against” her. (Id. at ¶ 59).[3]

         B. Procedural Background

         Plaintiff filed her initial Complaint in this action on June 10, 2016, naming Defendant and the State University of New York (“SUNY”) as parties. (Dkt. #1). In her Complaint, Plaintiff sought relief under various federal, state, and local statutes, but not the ADA. (Id. at ¶¶ 46-75).

         On July 19, 2016, Plaintiff filed her Charge of Discrimination with the EEOC. (SAC ¶ 2). Three aspects of Plaintiff's Charge of Discrimination merit close attention here, because they bear on Defendant's exhaustion and timeliness arguments:

         First, in her Charge of Discrimination, Plaintiff claimed that Defendant had violated the ADA. (EEOC Charge 1). In a section that asked Plaintiff to indicate her Charge's “Cause of Discrimination, ” Plaintiff marked two ...

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