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Salzberg v. City of New York

United States District Court, E.D. New York

July 31, 2017

PRISCILLA SALZBERG, Plaintiff,
v.
CITY OF NEW YORK, Defendant.

          MEMORANDUM DECISION AND ORDER

          Brian M. Cogan Judge.

         Plaintiff amended her employment discrimination complaint in response to defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), and defendant has renewed its motion against the amended complaint. No plausible inference of disability discrimination can be drawn from this pleading, and the motion is therefore granted.

         SUMMARY OF AMENDED COMPLAINT

         Plaintiff was employed as an administrative assistant at the New York City Department of Sanitation (“Sanitation”). The complaint does not allege when her employment began. Plaintiff has epilepsy and an anxiety disorder, both of which are under control with medical treatment and medication.

         However, on July 31, 2014, plaintiff had a seizure while on the job and was hospitalized for at least two days. Two of her supervisors, Christopher Volpe and John D'Angello, witnessed the seizure and visited her in the hospital. They told other employees, including Frank Abbriano, Peter Rasso, Richard Baker, Sal Brucculeri, and James Morrissey, about the seizure. The complaint alleges that these individuals are either employees or supervisors, but it does not allege who was which.

         Plaintiff alleges that some or all of these individuals directed “instances of hostility” against her. We are not told what those instances of hostility were. Plaintiff filed internal complaints about these “instances of hostility, ” but we are not told what the internal complaints said, except that one was for gender discrimination arising from her rejection of a romantic advance (not the subject of this lawsuit). Even as to that one, we are not told exactly what one or more of the employees did that plaintiff thought was gender discrimination.

         Shortly before November 14, 2014, plaintiff took a one-week leave of absence. We are not told why. When she returned, Morrissey (who we assume was a supervisor) was dissatisfied with the documentation (apparently medical, although we are not told that) that she provided to support her leave. He sent her to the Sanitation medical office, stating that she was exhibiting erratic behavior and possible illegal drug use.

         Plaintiff advised the Sanitation medical staff that she had epilepsy and an anxiety disorder, but that these conditions were under control with medication. A doctor on the medical staff named Barbara Allen, however, determined that plaintiff was medically and psychologically unfit for duty, and she was placed on medical leave for about 30 days. After that absence, two of plaintiff's doctors, and two unidentified Sanitation doctors, were able to convince Barbara Allen that plaintiff could return to duty.

         Upon her return, Peter Rasso (again, we are not told if he is a supervisor or a co-worker, but it seems like he must have been the latter) blocked plaintiff's ability to leave her office by placing a chair against the door, and on several occasions, wheeled a chair into her. Plaintiff alleges Rasso committed other “hostile acts” but we are not told what they were. Rasso and the other employees named above also filed complaints negatively commenting on plaintiff's work and/or conduct.

         On or about February 15, 2015, plaintiff complained about Rasso to Morrissey. We are not told the substance of what she said to Morrissey except that Rasso had engaged in “harassing behavior and how it was tormenting her and affecting her ability to work in a safe environment.” Morrisey again sent plaintiff to the Sanitation medical staff for erratic behavior. The medical office found that she was suffering from hypertension and sent her home for two days, advising her to consult with her private physician.

         When she returned to work, Rasso continued to harass plaintiff. We are again not told what he did except that plaintiff believes it was “verbal abuse.” At this point, plaintiff complained to Sanitation's Human Resources Department, although we are again not told what she said, except that it included the chair incidents described above. The Human Resources Department transferred her “to another area away from Rasso and Morrissey.” On March 16, 2015, plaintiff was terminated for not meeting performance expectations and for misconduct. The panel that determined to terminate her included Morrissey.

         After she was terminated, there was an unemployment benefits proceeding, in which another Sanitation employee, Ryan David, Deputy Director, Office of Equity, Diversity and Inclusion, testified that plaintiff was terminated for “lawful reasons.” The appellate board of the State Unemployment Benefits Division “twice ruled” that plaintiff “did not commit any acts of misconduct.”

         Based on these allegations, plaintiff asserts nine claims for relief. Three of them are under the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq. - discrimination, hostile work ...


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