United States District Court, E.D. New York
OPINION AND ORDER
L. IRIZARRY Chief Judge.
Dermoth Reid (“Plaintiff”) is a male of Jamaican
origin, residing in Queens, New York. (Second Amended
Complaint, (“SAC”) Dkt. Entry No. 48, ¶ 8.)
Defendant Time Warner Cable New York City LLC (“Time
Warner” or “Defendant”) is a cable
television company with offices located at 769 Fifth Avenue,
Brooklyn, NY 11222. (SAC ¶ 9.) Plaintiff brings claims
under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000 et seq. (“Title VII”), the
Americans with Disabilities Act 42 U.S.C. § 12101 et
seq., as amended by the ADA Amendments Act of 2008
(“ADA”), the Family Medical Leave Act of 1993, 29
U.S.C. § 2601 et seq. (“FMLA”), New
York Labor Law § 195, 217 (“NYLL”), and the
Consolidated Omnibus Budget Reconciliation Act 29 U.S.C.
§ 1166 (“COBRA”). Plaintiff seeks
reinstatement, back pay and front pay, actual and liquidated
damages, compensatory and punitive damages, statutory
damages, attorney's fees, costs and disbursements, and
such other and further relief as this Court deems necessary
and proper. (SAC ¶ 74.)
23, 2014, Plaintiff, proceeding pro se, filed this
lawsuit against Defendant, alleging claims under Title VII
and the ADA only. (See Compl., Dkt. Entry No. 1.) On
July 6, 2015, Defendant moved to dismiss the complaint.
(See Motion to Dismiss, Dkt. Entry No. 12.) On
February 22, 2016, this Court granted Defendant's motion,
dismissing the complaint with leave to amend. (See
Memorandum and Order granting Motion to Dismiss
(“M&O”), Dkt. Entry No. 23.) On April 5,
2016, Plaintiff, still proceeding pro se, filed an
amended complaint, again asserting claims under Title VII and
the ADA only. (See Am. Compl., Dkt. Entry No. 25.)
Defendant moved to dismiss the amended complaint.
(See Motion to Dismiss, Dkt. Entry No. 28.)
October 14, 2016, Plaintiff engaged pro bono counsel
for the limited purpose of mediation. (See Notice of
Appearance, Dkt. Entry No. 39.) Due to the pending mediation
session, the Court terminated Defendant's motion to
dismiss the amended complaint as moot. (See Order
dated November 22, 2016.) When mediation failed to settle the
case, Plaintiff's pro bono counsel extended her
representation of Plaintiff and moved to file a second
amended complaint on his behalf. (See Letter Seeking
Leave to File, Dkt. Entry No. 45.) The Court granted the
request, and, on March 20, 2017, Plaintiff filed his second
amended complaint. (See Order dated February 21,
to Rule 12 of the Federal Rules of Civil Procedure, Defendant
moved to dismiss the second amended complaint for failure to
state a claim for relief. (See Def.'s Mem. in
Supp. of Mot. to Dismiss (“Def.'s Mot.”),
Dkt. Entry No. 52.) Plaintiff opposed the motion,
(See Pl.'s Mem. in Opp'n to Mot. to Dismiss
(“Opp'n.”), Dkt. Entry No. 57), and Defendant
replied. (See Def.'s Reply Mem. In Supp. Of Mot.
To Dismiss (“Reply”), Dkt. Entry No. 59.)
is of Jamaican origin and was employed by Defendant as a
direct sales associate from April 2007 until 2013. (SAC
¶¶ 10, 12, 46.) According to the records of
Defendant's leave administrator, Plaintiff was terminated
on April 25, 2013 after taking medical leave for
periodontitis. (Id. ¶ 24, 46.)
2010, Defendant created two new positions in the sales unit:
a “win-back specialist” and a “retention
specialist.” (Id. ¶ 13.) Plaintiff
repeatedly reached out to supervisors to inform them of his
interest in these positions. (Id. ¶ 15.)
Plaintiff alleges that the requirements for these positions
were the same as the requirements for those positions held by
him, and his Jamaican colleagues. (Id. ¶ 14).
However, Defendant did not hire Plaintiff or his Jamaican
colleagues for “win-back specialist” or
“retention specialist” positions. (Id.
¶¶ 14, 15.) Plaintiff also alleges that he, and his
Jamaican colleagues, earned less than those employed in the
two new positions. (Id. ¶ 15.)
alleges that, “on several occasions, ” he advised
supervisors that he believed that Defendant subjected the
Jamaican workers to disparate treatment and poor working
conditions. (Id. ¶¶ 18, 19.) After
Plaintiff raised these issues, supervisors allegedly told him
that he had a reputation for being a “big mouth,
” and they discouraged him from applying for
promotions. (Id. ¶ 20.)
the summer of 2012, Plaintiff began to suffer from chronic
periodontitis and buccal exostosis. (Id. ¶ 21.)
Plaintiff's teeth fell out and his gums bled profusely,
interfering with his ability to eat, speak, work, and drink.
(Id. ¶ 21.) Beginning in the summer of 2012,
Plaintiff spoke with supervisors multiple times about
requesting medical leave, but was told to wait until
December. (Id. ¶¶ 22, 23.)
December 2012, Plaintiff again requested medical leave. On
December 29, 2012, Defendant told Plaintiff that he could
take leave and to contact Unum Group (“Unum”),
the company's leave administrator, to request his leave.
(Id. ¶¶ 24, 25.) Plaintiff left work on
December 29, 2012. (Id. ¶ 24.) However, Unum
did not approve Plaintiff's leave under the FMLA or
Plaintiff's short term disability because it did not
receive sufficient documentation from Plaintiff's
attending physician. (Id. ¶¶ 33, 34.)
Plaintiff was notified of the denial via letter on February
20, 2013. (Id. ¶ 33.)
attempted to return to work on June 3, 2013, but a supervisor
told him that Defendant did not have him “in the
system.” (Id. ¶ 40.) When Plaintiff
applied for unemployment benefits in June 2013, he discovered
that he had been terminated. (Id. ¶ 42.) The
records of Defendant's leave administrator indicate that
Plaintiff was terminated on April 25, 2013. (Id.
¶ 46.) Plaintiff alleges that he never received a
termination letter from Defendant, or any notice that he was
at risk of being terminated. (Id. ¶¶ 42,
48.) Plaintiff contends that Defendant never sent him a COBRA
package informing him of his rights to continue under the
company healthcare plan. (Id. ¶¶ 48, 49.)
Motion to Dismiss Standard
Rule 8(a) of the Federal Rules of Civil Procedure, pleadings
must contain a “short and plain statement of the claim
showing that the pleader is entitled to relief.”
Pleadings are to give the defendant “fair notice of
what the claim is and the grounds upon which it rests.”
Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346
(2005) (quoting Conley v. Gibson, 355 U.S. 41, 47
(1957)), overruled in part on other grounds by Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007)). “[T]he
pleading standard Rule 8 announces does not require
‘detailed factual allegations, ' but it demands
more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 555).
“A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Id. (quoting Twombly, 550 U.S. at 555).
Rule 12(b)(6), a defendant may move, in lieu of an answer,
for dismissal of a complaint for “failure to state a
claim upon which relief can be granted.” To resolve
such a motion, courts “must accept as true all
[factual] allegations contained in a complaint, ” but
need not accept “legal conclusions.”
Iqbal, 556 U.S. at 678. For this reason,
“[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice” to insulate a claim against dismissal.
Id. “[A] complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.'”
Id. (quoting Twombly, 550 U.S. at 570).
order to establish a prima facie case for employment
discrimination under Title VII, Plaintiff must show that: (1)
he is a member of a protected class; (2) he was qualified for
the position he held; (3) he suffered an adverse employment
action; and (4) the adverse action took place under
circumstances giving rise to an inference of discrimination.
Holcomb v. Iona College, 521 F.3d 130, 138 (2d Cir.
2008) (citing Feingold v. New York, 366 F.3d 138,
152 (2d Cir. 2004)).
survive a motion to dismiss on a claim for retaliation under
Title VII, Plaintiff must allege that: (1) he participated in
a protected activity; (2) Defendant knew of his
participation; (3) he was subject to an adverse employment
action; and (4) there was a causal connection between the
participation in the protected activity and the adverse
employment action. Moy v. Perez, 2017 WL 4534777 at
*1 (2d Cir. Oct. 11, 2017) (citing Hicks v. Baines,
593 F.3d 159, 164 (2d Cir. 2010)). Retaliation must be a
“but for” cause of the adverse employment action.
Id. (citing Vega v. Hempstead Union Free Sch.
Dist., 801 F.3d 72, 90 (2d Cir. 2015)).
contends that Plaintiff's Title VII claims for
discrimination and retaliation should be dismissed. First,
Defendant asserts that Plaintiff failed to exhaust
administrative remedies before filing the lawsuit. Defendant
alleges that Plaintiff failed to cooperate with the New York
State Department of Human Rights (“NYSDHR”)
investigation by failing to give NYSDHR the names of
individuals who were promoted instead of him. (Def.'s
Mot. at 14-15.) Defendant asserts that Plaintiff was required
to file his Equal Employment Opportunity Commission
(“EEOC”) charge within 300 days of the alleged
incident underlying the claim, and he failed to do so.
(Id. at 16.) Defendant asserts that Plaintiff filed
the EEOC charge on July 25, 2013, over three years after
Plaintiff claims that he was unlawfully denied promotions, in
March of 2010 and 2012. (Id.) Defendant asserts that
the continuing violation theory does not excuse inaction
because it does not apply to discrete employment decisions
such as denial of promotions. (Reply at 5, citing Chin v.
Port Auth. of N.Y. & New Jersey, 685 F.3d 135, 157
(2d Cir. 2012)). Defendant contends that Plaintiff has not
exhausted his administrative remedies for the retaliation
claim because Plaintiff did not assert the claim in the
NYSDHR complaint. (Id. at 7.)
Defendant argues that Plaintiff's allegations are
insufficient. (Def.'s Mot. at 16-17.) Plaintiff does not
allege that he applied for the specialist positions, only
that he “expressed interest, ” which is
insufficient for a failure to promote claim. (Id.)
Moreover, Plaintiff fails to name or identify the national
origins of those employees who received the positions, and,
therefore, fails to plead an “inference of
discriminatory intent.” (Id. at 17.) Defendant
asserts that Plaintiff does not state a claim of pay
discrimination as he does not allege facts that the
differences in pay between Jamaican and non-Jamaican
employees were motivated by discriminatory animus.
(Id.) Finally, Defendant asserts that Plaintiff
fails to plead any direct evidence of a retaliatory animus.
Defendant contends that the time between Plaintiff's
complaints to his supervisors, made in 2010 and 2012, and the
termination, in 2013, are too far removed to suggest an
inference of discrimination.
opposes dismissal of his Title VII claim. (Opp'n. at 15.)
Plaintiff notes that the Court held previously that Plaintiff
exhausted his administrative remedies, and there is no reason
to reconsider that ruling. (See Reid v. Time Warner
Cable, No. 14-cv-3241, 2016 WL 743394, at *3; Opp'n.
at 15.) Plaintiff asserts that Defendant cannot show that he
did not cooperate in good faith with the NYSDHR
investigation. (Id. at 15-16.) Furthermore,