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Reid v. Time Warner Cable New York City LLC

United States District Court, E.D. New York

March 30, 2018

DERMOTH REID, Plaintiff,


          DORA L. IRIZARRY Chief Judge.

         Plaintiff 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.)

         On May 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.)

         On 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, 2017.)

         Pursuant 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.)


         Plaintiff 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.)

         In 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.)

         Plaintiff 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.)

         Around 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.)

         In 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.)

         Plaintiff 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.)


         I. Motion to Dismiss Standard

         Under 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).

         Under 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).

         II. Title VII

         A. Legal Standard

         In 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)).

         To 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)).

         B. Arguments

         Defendant 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.)

         Second, 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.

         Plaintiff 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, ...

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