Lee v. Colvin, 15 Civ. 1472 (KPF)
| Decision Date | 06 February 2017 |
| Docket Number | 15 Civ. 1472 (KPF) |
| Parties | DANNY LEE, Plaintiff, v. CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Southern District of New York |
For the overwhelming majority of his employment at the Social Security Administration (the "SSA") — an employment that continues to this day — Plaintiff Danny Lee has found fault with the conditions of his employment, correlated these conditions to certain immutable characteristics he possesses, and sought redress under the federal discrimination laws. In this action, Plaintiff alleges that Defendant Carolyn Colvin, the Acting Commissioner of the SSA, discriminated and retaliated against him on various bases, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"), and the Rehabilitation Act of 1973 (the "Rehabilitation Act"), 29 U.S.C. §§ 701 to 718. Defendant has moved to dismiss Plaintiff's Second Amended Complaint (the "SAC") in its entirety, claiming procedural and pleading deficiencies. For the reasons set forth in the remainder of this Opinion, Defendant's motion is granted in part and denied in part; the Court dismisses all claims other than Plaintiff's retaliation claim under the Rehabilitation Act.
On September 8, 2009, Plaintiff was hired by the SSA to work as a Legal Assistant/Case Intake Technician in its Brooklyn Hearing Office. (SAC, Ex. 1). Plaintiff was appointed pursuant to the agency's "Schedule A — Selective Placement Program," a two-year appointment program, upon the satisfactory completion of which Plaintiff's position could be "noncompetitively converted toa permanent appointment." (Id.).2 Plaintiff contends that almost immediately after he was hired, the SSA began to discriminate against him. (SAC Add.).
In his voluminous pleadings, Plaintiff alleges discrimination based on race, sex, national origin, color, religion, and disability. (SAC). Plaintiff alleges himself to be an Asian-American man and a United States citizen; he offers no insight into his religious practices. (Id.). Plaintiff further claims to suffer from femoral head avascular necrosis, which limits his range of motion and causes him moderate hip pain. (Id. at Ex. 4).3 It is on the basis of this condition that Plaintiff claims, and has been found, to be an individual with a disability. (Id. at Ex. 1).
Plaintiff's condition and its corresponding limitations are well-documented in a series of doctor's notes attached as exhibits to the SAC: In the earliest-dated note, from June 11, 2010, a physician indicated that Plaintiff could "only stand for a limited amount of time," and advised that Plaintiff's work schedule "should not include any manual labor[,] particularly any heavy lifting." (SAC, Ex. 2). The same physician indicated on August 3, 2010, that Plaintiff "should not be allowed to [lift], deliver any heavy boxes, nor ...continuously get up and down from his chair," because such "movement [would] aggravate his symptom[s]." (Id.). A different physician, on December 16, 2011, advised Plaintiff "to avoid heavy weight lifting ( or prolonged standing ([of] time) or frequently carrying heavy object[s]" of greater than five pounds "at any time," and to begin biweekly physical therapy. (Id. at Ex. 4). And a third physician noted on December 20, 2011, that he had advised Plaintiff "to not do heavy lifting or pulling," and believed Plaintiff "should be assigned to a more sedentary job." (Id.).
Also well-documented is the timeline of conduct giving rise to Plaintiff's SAC. Indeed, Plaintiff's diary of workplace grievances — beginning less than three weeks after his hiring — is remarkable for both the number and the granularity of its entries. (See generally SAC). The Court will consider specific incidents in more depth below, to the extent they are relevant to each of Plaintiff's claims. In general, Plaintiff alleges that he was discriminated against on various occasions between 2009 and 2016 insofar as: (i) he was subjected to a two-year probationary period for eligibility for advanced medical leave while non-disabled employees were given probationary periods of only one year; (ii) he was constructively discharged from his position; (iii) he was given false reviews and a groundless suspension and thus unable to secure a promotion; (iv) his disability was not reasonably accommodated; (v) he was subjected to unequal terms and conditions because his time records were falsified, he was given false reviews, his emailing was restricted, his workload was four timesgreater than his peers', he was forced to work as a receptionist, and he was given "all the paper cases"; and (vi) he was given instruction contrary to his job description. (See SAC; see generally id. at Ex. 1-25; Pl. Opp.).
Plaintiff filed his first Equal Employment Opportunity ("EEO") complaint internally with the SSA in the fall of 2010, "relating to a reasonable accommodation request he had filed earlier in the year." (SAC, Ex. 15; see also id. at Ex. 1). However, Plaintiff withdrew that complaint after discussion with EEO Counselor Marilyn Goldman. (SAC, Ex. 15; see also id at Ex. 1, 3). In an email sent on October 7, 2010, Ms. Goldman directed Plaintiff to "withdraw [his] EEO complaint if [his] request for reasonable accommodation ha[d] been granted." (SAC, Ex. 3). Plaintiff accordingly withdrew his complaint because he had received the printer that he sought. (Id.).
Plaintiff sought further EEO counseling on April 29, 2011. (SAC, Ex. 1). When the EEO counselor was unable to resolve Plaintiff's concerns, the counselor provided Plaintiff with a Notice of Right to File a Formal Complaint of Discrimination internally with the SSA. (Id.). Plaintiff filed a formal complaint on June 3, 2011, and it was accepted by the SSA on July 16, 2011, as Case No. NY-11-0559-SSA (the "2011 Case"). (Id.).
The SSA conducted a formal investigation into Plaintiff's allegations through September 26, 2011, and sent Plaintiff its Report of Investigation on October 28, 2011. (SAC, Ex. 1). Plaintiff requested a hearing before an EEOCAdministrative Judge ("AJ") (id.), and a hearing was held on May 5, 2014 . There, Plaintiff was asked whether he was pursuing or withdrawing his claims of discrimination on the bases of race and sex. . Plaintiff indicated that he intended to withdraw these claims. (Id.). Plaintiff was then given an opportunity to speak with his counsel off the record about this decision. (Id.). Following that discussion, Plaintiff confirmed his intention to drop these claims. (Id.; see also Pl. Opp. 2 ()).
The January 21, 2015 Final Order advised ...
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