Arroyo-Horne v.

• Decision Date: 09 December 2016
• Docket Number: 16-CV-03857 (MKB)
• Parties: MONICA ARROYO-HORNE, Plaintiff, v. NEW YORK CITY POLICE DEPARTMENT, ROBIN GOODMAN, NORMAN GRANDSTAFF, MONIQUE MORGAN, DIANE HARNACH, DAVE HALLOWAY, AL JERNIGAN and JEAN JASON, Defendants.
• Court: U.S. District Court — Eastern District of New York

MONICA ARROYO-HORNE, Plaintiff, v. NEW YORK CITY POLICE DEPARTMENT, ROBIN GOODMAN,NORMAN GRANDSTAFF, MONIQUE MORGAN, DIANE HARNACH,DAVE HALLOWAY, AL JERNIGAN and JEAN JASON, Defendants.

16-CV-03857 (MKB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

December 9, 2016

NOT FOR PUBLICATION

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

PlaintiffMonica Arroyo-Horne, proceeding pro se, commenced the above-captioned action on July 7, 2016, against Defendants the New York City Police Department(the "NYPD"),¹ and individual defendantsRobin Goodman, Norman Grandstaff, Monique Morgan, Diane Harnach, Dave Holloway, Al Jernigan and Jean Jason(the "Individual Defendants").(Compl. 2, 8-9, Docket EntryNo. 1.)²Plaintiff asserts claims of discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e et seq.("Title VII"), alleging that Defendants unfairly evaluated her and increased her workload, changed her schedule to a less convenient shift, denied her open positions and committed other harassing conduct.(Id. at 5, 10-15.)Plaintiff seeks damages.(Id. at 6.)Plaintiff has also moved, for the second time, to proceed in forma pauperis.³(Pl. Mot. for Leave to Proceed in forma pauperis("Pl. IFP Mot."), Docket EntryNo. 5.)The Court grants Plaintiff's application pursuant to 28 U.S.C. § 1915(a) for the limited purpose of this Memorandum and Order.⁴

For the reasons set forth below, the Court dismisses the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).Plaintiff is granted leave to file an amended complaint within thirty (30) days of the date of this Memorandum and Order.

I.Background

The following facts are taken from the Complaint and are accepted as true.Plaintiff is employed by the NYPD as a police administrative aide in the 69th precinct.(Compl. 3, 5, 10.)Plaintiff indicates that she was discriminated against on the basis of her race, color and national origin without providing details as to the protected classes to which she belongs.(Id. at 5.)Specifically, Plaintiff alleges that she was discriminated against from May to June of 2014 andJanuary to July of 2016 as well as during the month of February of 2015.⁵Plaintiff asserts that the discriminatory treatment is ongoing and that she remains employed by the NYPD.(Id.)Plaintiff alleges that at least for certain periods, Goodman, Jernigan and Jason held direct supervisory roles over her while the remaining Individual Defendants, with the exception of Grandstaff and Holloway,⁶ held positions as police administrative aides.(Id. at 3, 8-9.)

Plaintiff alleges that a variety of actions taken against her were discriminatory and were taken in retaliation for her previously filed lawsuit in December of 2007 against the NYPD and certain individuals.⁷(Id. at 15.)Plaintiff alleges that Morgan, under the guidance of Goodman, violated her Family and Medical Leave Act(the "FMLA")⁸"responsibility [] to pay or deduct time only," by questioning Plaintiff about Plaintiff's February 21, 2016"change of tour."(Id. at 12.)Separately, Plaintiff alleges that Jernigan and Goodman discriminated against her by issuing work evaluations of Plaintiff indicating that she only "meet[s] standards," even though she"trained most of the civilians who arrived at the 69th precinct,"(id. at 10), and Jason discriminated against Plaintiff in March of 2016 by issuing a "Command Discipline . . . stating [Plaintiff] failed to submit a complaint report,"(id. at 13).

On separate occasions, Goodman denied Plaintiff"open positions" — one in the domestic violence office and another in the administration office — "that [Plaintiff] applied for and these positions were given to other individuals that held the same title as [Plaintiff]."(Id. at 5, 10.)Plaintiff alleges the domestic violence office position "was given to PAA Huang, Xiao, Hong [who] was unable to complete her task in that office and was later removed from domestic violence" and that she was "offered" the administration office position but was denied the position "without reason."(Id. 10.)

Plaintiff also alleges that Goodman and Jones altered her work schedule and unfairly assigned her work duties as compared to other police administrative aides.(Id. at 11, 13-14.)Plaintiff alleges that Goodman "was aware of [Plaintiff's] hardship" as the "caretaker for [her] parent who suffers from Altzheimer's," but Goodman nevertheless "changed [Plaintiff's] schedule . . . from 4x12 to 6:30 a.m. to 2:00 p.m." in order "to resolve a[n] issue between [police administrative aide]Monique Morgan and [Plaintiff]."(Id. 11.)Plaintiff alleges two instances where work was unfairly assigned to her.Plaintiff alleges that despite Goodman's awareness of Morgan's "work ethics," on one occasion, Goodman allowed "the newly hired [Morgan] to continue to socialize around the command leaving the work load on [Plaintiff]."(Id.)On another occasion, Plaintiff was asked to do "work that [could] be handled often by the next tour of PAA's" which was discrimination "towards [Plaintiff] and [her] coworker who worked day tours."(Id. at 13-14.)

Finally, Plaintiff alleges that Harnach unfairly discriminated against Plaintiff by inciting an "unnecessary argument," which Plaintiff alleges "came from [police administrative aid] Morgan" with regard to a dispute over a radio, (id. at 12-13), and Jones unfairly discriminated against Plaintiff on July 7, 2016 by taking "a desk fan from the front desk [Plaintiff] wasassigned to,"(id. at 14-15).

To the best of Plaintiff's recollection, in January of 2016, she filed a charge with the Equal Employment Opportunity Commission("EEOC") regarding the NYPD's alleged discriminatory conduct (the "EEOC Charge").(Id. at 6.)The EEOC issued a notice of right-to-sue on April 8, 2016, which Plaintiff received on July 1, 2016.⁹(Id.)

II.Discussion

a. Standard of review

In reviewing a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must construe the complaint liberally, "accepting all factual allegations in the complaint as true and drawing all reasonable inferences in the plaintiff's favor."Concord Assoc's, L.P. v. Entm't Prop. Trust, 817 F.3d 46, 52(2d Cir.2016)(quotingChambers v. Time Warner Inc., 282 F.3d 147, 152(2d Cir.2002));see alsoTsirelman v. Daines, 794 F.3d 310, 313(2d Cir.2015)(quotingJaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 329(2d Cir.1997)).A complaint must plead "enough facts to state a claim to relief that is plausible on its face."Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570(2007).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."Matson v. Bd. of Educ., 631 F.3d 57, 63(2d Cir.2011)(quotingAshcroft v. Iqbal, 556 U.S. 662, 678(2009));see alsoPension Ben. Guar. Corp. ex rel. St. Vincent Catholic Med. Ctrs. Ret. Plan v. Morgan Stanley Inv. Mgmt. Inc., 712 F.3d 705, 717-18(2d Cir.2013).Although all allegations contained in the complaint are assumed true, thisprinciple is "inapplicable to legal conclusions" or "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements."Iqbal, 556 U.S. at 678.In reviewing a pro se complaint, the court must be mindful that a plaintiff's pleadings should be held "to less stringent standards than formal pleadings drafted by lawyers."Erickson v. Pardus, 551 U.S. 89, 94(2007)(per curiam)(quotingEstelle v. Gamble, 429 U.S. 97, 104-105(1976));seeHarris v. Mills, 572 F.3d 66, 72(2d Cir.2009)(noting that even after Twombly, the court"remain[s] obligated to construe a pro se complaint liberally").Nevertheless, the Court is required to dismiss sua sponte an in forma pauperis action if the Court determines it "(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief."28 U.S.C. § 1915(e)(2)(B);see alsoAbbas v. Dixon, 480 F.3d 636, 639(2d Cir.2007).

b. FMLA claim

Plaintiff alleges that Morgan, influenced by her friendship with Goodman, violated the FMLA by failing to fulfill her "responsibility [] to pay or deduct time only" because she"question[ed]"Plaintiff about her "change of tour" on February 21, 2016.(Compl. 12.)According to Plaintiff, Morgan "continued to harass"Plaintiff even after Plaintiff raised the situation with a supervisor, principal administrative aide Benton, who attempted to resolve the dispute.(Id.)

"The FMLA gives eligible employees an 'entitlement' to twelve weeks per year of unpaid leave '[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.'"Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 174(2d Cir.2006)(quoting29 U.S.C. § 2612(a)(1)(D)).It "'creates a private right of action to seek both equitable relief and money damages against any employer . . .' should that employer'interfere with, restrain, or deny the exercise of' FMLA rights.'"Id.(quotingNevada Dep't of Human Res. v. Hibbs, 538 U.S. 721, 724-25(2003))."The Second Circuit recognizes distinct claims of interference and retaliation under the FMLA."Sista, 445 F.3d at 175(discussing this split approach to FMLA claims).An employee is eligible for FMLA benefits once she has been employed for at least twelve months, and has worked at least 1250 hours in the previous twelve-month period.29 U.S.C § 2611(2)(A);Porter v. Donahoe, 484 F. App'x 589, 590(2d Cir.2012);Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 715(2d Cir.2001)."[E]ligibility is a threshold issue which has to be proved by [the]plaintiff in order for him to be entitled to relief."Bulmer v. Yellow Freight Sys., Inc., 213 F.3d 625, 625(2d Cir.2000);see alsoDonnelly v. Greenburgh Cent. Sch. Dist....