United States District Court, E.D. New York
ORDER ADOPTING R&R
Kiyo A. Matsumoto United States District Judge.
before the court is the Report and Recommendation of United
States Magistrate Judge Lois Bloom, filed on December 18,
2017, recommending that that the motion to dismiss (ECF No.
18) filed by defendants Delta Airlines, Inc.
(“Delta”) and its Chief Executive Officer,
Richard Anderson (“Anderson, ” and together with
Delta, “defendants”), be granted in part and
denied in part. (Report and Recommendation re Motion to
Dismiss for Failure to State a Claim (“R&R”),
ECF No. 25 at 1-2.) Delta timely objected to Magistrate
Bloom's R&R. (Delta Objection to R&R (“Def.
Obj.”), ECF No. 26.) Plaintiff Bahji Adams, proceeding
pro se, also objected to the R&R, though her
objections were received by the court after the objection
deadline had passed. (Plaintiff Objection to R&R
(“Pl. Obj.”), ECF No. 27.) In any event, the
court has undertaken a comprehensive de novo review
of the R&R and the record in light of the written
objections, pursuant to 28 U.S.C. §
636(b)(1)(C).For the reasons set forth below, the court
adopts Judge Bloom's R&R in its entirety, except
that, for the reasons set forth below, the court declines to
specify that the dismissal of plaintiff's NYSHRL claim
against Anderson is without prejudice.
court assumes familiarity with the underlying facts and
procedural history, as set forth in greater detail in the
R&R. (See R&R at 1-4.) As relevant here,
plaintiff alleges that in 2014, while employed by Delta, she
was diagnosed with various left knee ailments that left her
permanently impaired. (See Amended Complaint
(“Am. Compl., ” or the “amended
complaint”), ECF No. 11, p. 12 ¶ 8-p. 12 ¶
12; p.5 ¶ 20.)According to the amended complaint, in late
May of 2014, plaintiff informed her supervisor about her knee
pain and shortly thereafter, filed a workers'
compensation claim, which Delta denied. (Id. p.12
¶ 12-p. 13 ¶ 13.) At some point, plaintiff
visited a doctor, who recommended that plaintiff limit
“prolonged standing” and “be able to walk
around.” (Id. p.13 ¶ 14.) The amended
complaint also annexes a report from “Associates in
Orthopaedic Surgery” (Am. Compl. at 28 of 31),
stating that it “would help to
change/rotate duty stations regularly.”
advising her supervisor of her knee pain, plaintiff continued
working for Delta until June 20, 2014. (Am. Compl. p. 13
¶ 15-p. 13 ¶ 16.) The amended complaint alleges
that on or about that date, plaintiff “requested the
ability to be able to sit-down to get off her knee, ”
and in response was “sent home from work, with no
return date.” (Id. p. 13 ¶ 16.)
amended complaint further alleges that on August 21, 2014,
plaintiff met with Delta representatives and requested the
use of a chair and a desk, which plaintiff alleges are
available at other Delta airport locations, as a reasonable
accommodation. (Id. p. 13 ¶ 17, p. 14 ¶
19, p. 15 ¶ 25.) At some point in or after July of 2014,
plaintiff expressed interest in a flight attendant position
as a “reasonable accommodation.” (Id. p.
11 ¶ 23.) Plaintiff alleges that a position as a flight
attendant would allow her to “sit, stand, stretch,
[and] take breaks.” (Id.) Plaintiff's
requests were denied, and Delta placed plaintiff on
“short-term disability leave which was [then] converted
to [unpaid] medical leave” as of September 2014.
(Id. p. 14 ¶ 18-p. 14 ¶ 19, p. 16 ¶
26; see also Id. p. 11 ¶ 23 (alleging that when
plaintiff requested a transfer to a flight attendant
position, Delta stated it would “attempt to return her
to her prior position.”)
filed either a charge with the Equal Employment Opportunity
Commission (“EEOC”), or a Massachusetts state
charge that was dual-filed with the EEOC, and received a
right to sue letter on January 19, 2016. (Id. p. 11
¶ 25; see also EEOC Dismissal and Notice of
Rights, ECF No. 1 at 29; R&R at 4 n.8 (noting possibility
that Massachusetts state charge was filed and dual-filed with
EEOC).) Plaintiff commenced the instant action on April 19,
2016, (see Initial Complaint, ECF No. 1), and filed
her amended complaint on December 7, 2016. (See Am.
Bloom construed plaintiff's complaint to assert the
following claims: a failure to accommodate claim under the
Americans with Disabilities Act (the “ADA”), 42
U.S.C. §§ 12112, et seq., the
Rehabilitation Act, 29 U.S.C. §§ 701 et
seq., and the New York State Human Rights Law
(“NYSHRL”), N.Y. Exec. L. §§ 290,
et seq.; a retaliation claim under the ADA, the
Rehabilitation Act, the NYSHRL, and Title VII of the Civil
Rights Act of 1964 (“Title VII”), codified at 42
U.S.C. §§ 2000e, et seq.; a hostile work
environment claim under the ADA, Title VII, and the
Rehabilitation Act; a civil rights claim under 42 U.S.C.
§ 1983 (“section 1983”); and a claim under
the Federal Tort Claims Act
(“FTCA”). (See R&R.)
Bloom recommended that this court: (1) grant defendants'
motion to dismiss with respect to plaintiff's federal
claims against Anderson, plaintiff's claims under Title
VII, plaintiff's reasonable accommodation claim
pertaining to her request to transfer to a flight attendant
position, plaintiff's hostile work environment claims,
and plaintiff's claims under section 1983 and the FTCA;
and (2) dismiss plaintiff's state law claim against
Anderson without prejudice. (Id. at 20.)
Additionally, Judge Bloom recommended that this court deny
plaintiff leave to re-plead as to the dismissed claims.
(Id. at 19.) Judge Bloom further recommended that
plaintiff's claims against Delta alleging that it failed
to accommodate plaintiff's request for a desk and chair
and retaliated against her, stated claims for violations of
the ADA, the Rehabilitation Act, and the NYSHRL, and should
Review of R&R
district court reviews those portions of a Report and
Recommendation to which a party has timely objected under a
de novo standard of review, and “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)(C).
Motions to Dismiss
plaintiff's complaint must be dismissed if it fails to
state a claim upon which relief can be granted. Fed.R.Civ.P.
12(b)(6). In deciding a motion to dismiss under Federal Rule
of Civil Procedure (“Rule”) 12(b)(6), the court
evaluates the sufficiency of a complaint under a
“two-pronged approach.” Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). First, courts generally
accept as true the well-pleaded factual allegations of a
complaint, but are not bound to accept legal conclusions when
examining the sufficiency of a complaint. See Id. at
678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 555 (2007)). Second, after the court assumes all
well-pleaded facts to be true, the court must
“determine whether they plausibly give rise to an
entitlement to relief.” Iqbal, 556 U.S. at
679; see also Twombly, 550 U.S. at 555-56. A claim
is plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556).
plaintiff proceeds pro se, courts must construe the
plaintiff's complaint “liberally” at the
motion to dismiss stage. Harris v. Mills, 572 F.3d
66, 72 (2d Cir. 2009). This means that the court must
interpret a pro se complaint “to raise the
strongest arguments that [it] suggest[s].” Pabon v.
Wright, 459 F.3d 241, 248 (2d Cir. 2006) (quoting
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
Nonetheless, to survive a motion to dismiss, a pro
se complaint “must contain sufficient factual
allegations to meet the plausibility standard.”
Green v. McLaughlin, 480 F. App'x 44, 46 (2d
Cir. 2012) (summary order) (citing Harris, 572 F.3d
Bloom recommended that this court deny the defendants'
motion to dismiss plaintiff's claims against Delta
alleging that it (1) failed to accommodate plaintiff's
request for a desk and chair and (2) retaliated against her
in violation of the ADA, the Rehabilitation Act, and the
NYSHRL. Defendants objected to this recommendation, and the
court will consider each objection de novo.
contend in their objections that plaintiff “admits she
was hired by Delta as a temporary ‘greeter' at JFK
airport and that her position required her to be available to
direct passengers to the proper security lines and check-in
counters in one of New York's busiest international
airports.” (Def. Obj. at 2.) Accordingly, defendants
assert, it is “apparent on its face that
Plaintiff's request that she be provided a ‘chair
and desk' would have prevented her from performing any of
the functions of the ‘greeter' position, and,
therefore, would not have been a reasonable accommodation as
a matter of law.” (Id.) Defendants also
contend that they accommodated plaintiff by granting her
“several weeks of medical leave, ” which
“was a reasonable accommodation in and of
itself.” (Id. at 3.) These contentions are
amended complaint alleges that “portable desk
stations” are available to Delta employees at other
airports, specifically LaGuardia and Atlanta. (Am. Compl. p.
14 ¶ 19, p. 14 ¶ 22, p. 15 ¶ 23; see
also Am. Compl. pp. 5-6 ¶ 11 (referring to a
“portable desk” as a reasonable accommodation).)
Read liberally, the amended complaint also asserts that Delta
employees stationed at portable desks in the Atlanta airport
were able to assist Delta customers. (See Am. Compl.
p. 14 ¶ 22 (“July 2nd, 2014, Delta employees at
ATL sitting down with portable desk stations, saying,
‘Let me Help you. see attached exhibit A, B,
C.'” [sic]).) At the Rule 12 motion to dismiss stage,
assuming the truth of these factual statements, the amended
complaint sufficiently alleges that that plaintiff could have
performed her essential job functions had she been provided a
portable desk and chair as a reasonable accommodation.
defendants' contention that the “concept of
Plaintiff sitting in a chair in the middle of JFK is
implausible” appears to be based on defendants'
allegations beyond the complaint regarding the volume of
passenger traffic at JFK. (Def. Obj. at 2-3.) At the Rule 12
motion to dismiss stage, the court may only properly consider
the amended complaint and those documents integral to,
incorporated by reference in, or attached to it. Chambers
v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir.
2002) (citations omitted). There is nothing in the amended
complaint or any attachments regarding the volume of traffic
at JFK airport, or any information as to how the volume of
pedestrian traffic might limit plaintiff's ability to
fulfill her job duties. In deciding defendants' Rule
12(b) (6) motion, the court cannot consider defendants'
contentions to the extent they rely on information outside
defendants' contention that “the medical leave
provided to Plaintiff was a reasonable accommodation in and
of itself, ” (Def. Obj. at 3), does not suffice to
warrant dismissal at the Rule 12 motion to dismiss stage. As
Judge Bloom correctly stated, at the Rule 12 stage, the
employer “bears the weighty burden of showing that the
fact-intensive inquiry prerequisite to a finding of
reasonable accommodation falls completely in its
favor.” Goonan v. Fed. Reserve Bank of New
York, 916 F.Supp.2d 470, 482 (S.D.N.Y. 2013) (citations
plaintiff alleges in her amended complaint that medical leave
was accompanied by a loss of remuneration, (Am. Compl. pp.
8-9 ¶ 17), and was not a reasonable accommodation,
particularly in light of the amended complaint's
above-discussed allegations that plaintiff could have
performed her job duties had she been provided a desk and
chair. On de novo review, the undersigned judge
agrees with Judge Bloom that plaintiff has sufficiently
alleged a failure to accommodate claim under the ADA, the
Rehabilitation Act, and the NYSHRL. If defendants wish to
establish the unreasonableness of a desk and chair, based on
their contentions regarding the volume of traffic at JFK
airport or otherwise, or to establish the reasonableness of
medical leave, they may seek to do so at the summary judgment
stage or at trial. See Vale v. Great Neck ...