Horsham v. Fresh Direct

• Decision Date: 28 September 2015
• Docket Number: No. 14–CV–651 (MKB).,14–CV–651 (MKB).
• Citation: 136 F.Supp.3d 253
• Parties: Cyril HORSHAM, Plaintiff, v. FRESH DIRECT, Defendant.
• Court: U.S. District Court — Eastern District of New York

136 F.Supp.3d 253

Cyril HORSHAM, Plaintiff,

v.FRESH DIRECT, Defendant.

No. 14–CV–651 (MKB).

United States District Court, E.D. New York.

Signed Sept. 28, 2015.

Cyril Walter Horsham, Brooklyn, NY, pro se.

Jeannine R. Idrissa, Littler Mendelson P.C., Newark, NJ, for Defendant.

MEMORANDUM & ORDER

MARGO K. BRODIE, District Judge.

Plaintiff Cyril Horsham, proceeding pro se, commenced the above captioned action on January 28, 2014, against Defendant Fresh Direct, alleging age and disability discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), the Americans with Disabilities Act ("ADA"), and the New York State Human Rights Law ("NYSHRL"). On February 6, 2014, Magistrate Judge Lois Bloom granted Plaintiff's application to proceed in forma pauperis under 28 U.S.C. § 1915. (Docket Entry No. 4.) On June 19, 2014, the Court held a pre-motion conference to discuss Defendant's anticipated motion to dismiss and granted Plaintiff thirty days to amend the Complaint to add facts supporting his claims. (June 19, 2014 Minute Entry.) On September 22, 2014, Plaintiff filed an Amended Complaint.¹ (Am. Compl., Docket Entry No. 15.) Defendant now moves to dismiss the Amended Complaint. (Def. Mot. to Dismiss, Docket Entry No. 18; Def. Mem. in Support of Mot. to Dismiss ("Def. Mem. "), Docket Entry No. 18–1.) For the reasons discussed below, the Court grants Defendant's motion to dismiss the Amended Complaint, but gives Plaintiff thirty (30) days to file a seconded amended complaint.

I. Background

The allegations in the Amended Complaint are assumed to be true for the purposes of deciding this motion.² For six years, Plaintiff worked for Defendant in an unknown position.³ (Am. Compl. 2.) After developing a work-related hernia, Plaintiff underwent surgery to correct the problem. (Id. at 2–3.) According to Plaintiff, prior to his hernia operation, he was regarded as a successful employee and received awards, but after his hernia operation, Defendant began discriminating against him. (Id. at 3.) In particular, without notifying Plaintiff, Defendant placed him on an unpaid "[d]isciplinary [l]eave of [a]bsence." (Id. at 2–3.) Plaintiff believes this was improper because his hernia was a work-related injury that entitled him to workers' compensation payments or disability benefits, and did not warrant disciplinary leave. (Id. at 3, 7–9.) Plaintiff also claims that, unlike other injured workers, Defendant placed him on unpaid disciplinary leave. (Id. at 3.) Plaintiff contends that Defendant normally requires employees to formally request a leave of absence, and Plaintiff knows of no other employees who were treated like he was. (Id. ) Plaintiff alleges this was discrimination.

a. Plaintiff's recovery from hernia surgery

After undergoing hernia surgery,⁴ Plaintiff's doctor told him not to work for fourteen days and thereafter to perform only "[l]ight [d]uty" for his first six weeks back at work. (Id. ) During his fourteen-day recovery period, Plaintiff routinely spoke with one of Defendant's dispatchers named "Al." (Id. ) Near the end of his fourteen-day home recovery, Plaintiff went to work and informed Defendant about the doctor's recommendation. (Id. ) While there, Plaintiff provided information about his injury, surgery and recovery to "Zoila" in Defendant's human resources department ("HR") and to an employee who dealt with safety issues. (Id. at 3–4.) Zoila told Plaintiff that HR would contact him about light duty work he could perform. (Id. at 4.) Although Plaintiff offered to come in two days later, Al, the company dispatcher, told him to stay at home until HR called him. (Id. )

Plaintiff stayed home as Al directed, but no one contacted him. (Id. ) At the time, Plaintiff believed Defendant was allowing him time to heal, but he also noticed that he stopped receiving paychecks. (Id. ) Toward the end of his six-week light duty time, Plaintiff visited his doctor to confirm he could resume working. (Id. at 4–5.) Plaintiff's doctor informed him that his recovery was behind schedule, but the doctor did not extend his light duty time, instead he directed Plaintiff to "wear a [b]elt and secure [him]self when [he] returned to the job." (Id. )

b. Plaintiff follows up with Defendant

Plaintiff went to work at the end of the six-week light duty time. (Id. at 5.) When Plaintiff arrived, Al informed Plaintiff that he was permitted to miss three months of work and retain his job. (Id. ) Because Plaintiff had not previously filed an injury report, Plaintiff spoke with his Manager, "Madjie," to create one. (Id. ) Madjie asked that Plaintiff's doctor prepare a letter stating he was fit to return to work. (Id. )

Thereafter, based on concerns about Plaintiff's recovery, Plaintiff's doctor scheduled a "CAT scan" for December 6, 2012. (Id. at 5–6.) Plaintiff also had additional follow-up appointments with his doctor. (Id. at 6.) Throughout this time period, Plaintiff informed the dispatcher, Al, about his status, and Al told Plaintiff he would relay the information to someone named "Michael." (Id. at 5–6.) At some point, Plaintiff visited his doctor to get the letter he needed before returning to work, and he told his doctor that he was hesitant to begin working because working with Defendant's truck contributed to his hernia. (Id. at 6.) The doctor suggested Plaintiff start with less physically demanding work, and then gradually resume his prior work. (Id. )

c. Plaintiff attempts to return to work

On April 26, 2013, Plaintiff delivered the doctor's letter to Defendant. (Id. ) That day, Plaintiff told his union that he had not been paid since the surgery. (Id. ) In response, a union member gave Plaintiff a telephone number to call and "straighten" out his "entitlements." (Id. ) Plaintiff did not reach anyone at that number, but a union member called him back and informed Plaintiff that Defendant believed he walked away from his job. (Id. at 7.) The union member told Plaintiff to speak with HR. (Id. )

After failing to reach HR, Plaintiff complained to the "Labor Board."⁵ (Id. ) Plaintiff alleged that after his surgery, Defendant placed him on unpaid disciplinary leave instead of "[l]imited [d]isability," to avoid paying him workers' compensation and disability benefits.⁶ (Id. ) This deprived Plaintiff of the "emergency services" he was entitled to after having paid for them through six years of work and paycheck deductions. (Id. at 7–8.)

On May 14, 2013, Plaintiff filed a complaint with the New York State Division of Human Rights ("NYSDHR"), alleging age and disability discrimination. (NYSDHR Compl., annexed to Decl. of Jeannine Idrissa ("Idrissa Decl.") as Ex. 1, Docket Entry No. 18–2.) During the ensuing investigation, Plaintiff learned that Defendant had terminated him sometime in June of 2013, but he had never received notice of, or any correspondence regarding, his termination. (Am. Compl. 8.) Plaintiff then applied for unemployment benefits, but Defendant opposed his application, stating that it had "lots of work [he] could do." (Id. at 8–9.) On November 13, 2013, the NYSDHR issued the results of its investigation, finding no probable cause to believe Defendant had committed the discrimination Plaintiff alleged.⁷ (NYSDHR Determination and Order after Investigation ("NYSDHR Order"), annexed to Idrissa Decl. as Ex. 2.)

On June 26, 2013, Plaintiff received a letter from Defendant dated May 10, 2013 (the "May 10, 2013 Letter"), which he alleges was fraudulently dated and contained false statements.⁸ (Am. Compl. 9–10; May 10, 2013 Letter, annexed to Decl. of Michelle Flete as Ex. 1, Docket Entry No. 18–3.) The May 10, 2013 Letter stated that Plaintiff's leave time had expired, and that Plaintiff had not contacted Defendant from October 24, 2012 until April 24, 2013. (Am. Compl. 10; May 10, 2013 Letter 1.) Plaintiff alleges that the May 10, 2013 Letter is false, because he visited Defendant in November of 2012, when his recommended six-week light duty time was complete. (Am. Compl. 10.)

Plaintiff contends that, given his prior performance with Defendant, he did not deserve to be placed on an unpaid disciplinary leave of absence after his surgery. (Id. at 1, 9.) Plaintiff further contends that by placing him on unpaid disciplinary leave, Defendant "eliminated [his] right to seek unemployment ... compensation because [he] was not officially fired from [his] job." (Id. at 8.) Plaintiff asserts that Defendant's "calculated efforts" to deny him the limited disability or workers' compensation benefits he was entitled to "should be considered ... discrimi[na]tory." (Id. ) Plaintiff also asserts that Defendant's conduct was discriminatory because it caused people to "harbor negative thoughts towards [Plaintiff]." (Id. at 10.)

II. Discussion

a. Standards of review

i. Rule 12(b)(1)

A district court may dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) when the court "lacks the statutory or constitutional power to adjudicate it ....' " Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 416–17 (2d Cir.2015) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) ); Shabaj v. Holder, 718 F.3d 48, 50 (2d Cir.2013) (same). A plaintiff asserting subject matter jurisdiction has the burden to prove that it exists, and in evaluating whether the plaintiff has met that burden, " ‘[t]he court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff,’ but ‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.’ " Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008) (internal citations omitted), aff'd, 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). A court may consider matters outside of the pleadings when determining whether subject matter jurisdiction exists. M.E.S., Inc. v. Snell, 712 F.3d 666, 671 (2d Cir.2013) ; Romano v. Kazacos, 609...