Lee v. Saul

• Decision Date: 10 February 2022
• Docket Number: 20-CV-02956 (PGG)(SN),19-CV-06553 (PGG)(SN)
• Parties: DANNY LEE, Plaintiff, v. ANDREW SAUL, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant. DANNY LEE, Plaintiff, v. ANDREW SAUL, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
• Court: U.S. District Court — Southern District of New York

DANNY LEE, Plaintiff, v. ANDREW SAUL, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.

DANNY LEE, Plaintiff, v. ANDREW SAUL, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.

Nos. 19-CV-06553 (PGG)(SN), 20-CV-02956 (PGG)(SN)

United States District Court, S.D. New York

February 10, 2022

REPORT AND RECOMMENDATION

SARAH NETBURN, United States Magistrate Judge.

TO THE HONORABLE PAUL G. GARDEPHE:

PlaintiffDanny Lee(“Plaintiff” or “Lee”) brings this employment discrimination action against Andrew Saul(“Defendant”), the former Commissioner of the Social Security Administration (“SSA”).Plaintiff, proceeding pro se, asserts claims under Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e, et seq., the Rehabilitation Act of 1973,29 U.S.C. § 701, et seq., the Americans with Disabilities Act of 1990,42 U.S.C. § 12101, et seq., (“ADA”), and the Family and Medical Leave Act of 1993,29 U.S.C. § 2601, et seq., (“FMLA”).Additionally Lee alleges that Defendant violated the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (“No FEAR Act”), 5 U.S.C. § 2301 et seq., and his right to union representation at investigatory interviews pursuant to National Labor Relations Board v. J. Weingarten, Inc.,420 U.S. 251(1975), and obstructed justice by deleting emails and destroying evidence.Defendant moves to dismiss the complaint under Rule 12(b)(6) for failure to state a claim.I recommend that the Court grant Defendant's motion to dismiss.

BACKGROUND

Between 2009 and 2016, Lee was employed by the Social Security Administration as a Legal Assistant and Case Intake Specialist.ECF No. 29, Second Amended Complaint (“Sec Am. Compl.”)at 16-24.He has filed three cases alleging that the SSA discriminated against him, failed to accommodate his disabilities, and retaliated against him when he sought legal recourse.In the first suit, Lee v Colvin,No. 15-cv-1472 (KPF), 2017 WL 486944(S.D.N.Y.Feb. 6, 2017)(Lee I), only Lee's retaliation claim under the Rehabilitation Act survived Defendant's motion to dismiss.Id. at 16.Judge Failla subsequently granted Defendant's motion for summary judgment on the remaining claim, which related to events that occurred in June 2011(Lee's assignment to process paper cases), 2019 WL 367834, at *1, *4(S.D.N.Y.Jan. 30, 2019), and the Court of Appeals affirmed (802 Fed.Appx. 663, 664(2d Cir.2020)).While the appeal was pending, Lee filed a second action.Lee v. Saul,No. 19-cv-6553 (PGG)(SN), 2020 WL 5836513, at *1(S.D.N.Y.Sept. 30, 2020)(Lee II).Defendant moved to dismiss, and the Court granted the motion in its entirety.Id. at *1.Although the Court expressed doubt that the Complaint's defects could be cured, Plaintiff was granted leave to amend his claims under the Rehabilitation Act.Id. at *9.

On April 10, 2020, Lee filed his third case.ECF No. 2, Complaint.The Court subsequently consolidated the 2019 and 2020cases.ECF No. 27.Lee filed his Second Amended Complaint on April 12, 2021.ECF No. 29.Lee alleges generally that the SSA discriminated against him on the basis of his disabilities - hip pain and depression - and also engaged in unlawful disparate treatment, retaliation, and harassment in violation of the Rehabilitation Act, the ADA, and the FMLA. Sec. Am. Compl. at 3-5.He also claims that the SSA did not promote him, did not accommodate his disabilities, denied him leave, and suspended him.Id. at 5.In attached documents, Lee describes allegations against the SSA and provides a detailed timeline of his employment beginning in 2009 and ending in 2016.Id. at 13-24.

In addition to the underlying complaints, two right-to-sue letters, the first dated May 31, 2019, and the second dated January 14, 2020, are attached to the Second Amended Complaint.Id. at 29-36.The first letter denied Lee's request for reconsideration of a prior decision concluding that the SSA neither discriminated against him on the basis of disability by failing “to provide him with appropriate reasonable accommodations for his disability beginning on May 20, 2015” nor “subjected him to harassment based on disability and reprisal beginning May 20, 2015 and ongoing, in terms of job duties including time and attendance, training, and reasonable accommodation.”Id. at 29-30.The second letter concerned three complaints Lee filed in April and September 2016 relating to a three-day suspension in February 2016, alleged harassment between February 1 and August 30, 2016, the denial of his request for Leave Without Pay and charge of Absent Without Leave on multiple occasions in 2016, the failure to provide a timely response to his request for a hardship transfer, and his suspension on August 15, 2016.Id. at 3334.The EEOC affirmed the denial of administrative relief and informed Lee of his right to file a civil action.Id. at 35-36.

The Defendant moved to dismiss the Complaint pursuant to Rule 12(b)(6).ECF No. 34.Plaintiff submitted an objection, attaching documents relevant to the events in question and a portion of a transcript of a court hearing.SeeECF No. 38.

DISCUSSION

I.Legal Standard

A complaint must be dismissed if it fails “to state a claim upon which relief can be granted.”Fed.R.Civ.P. 12(b)(6).To state a legally sufficient claim, a complaint must plead “enough facts to state a claim for relief that is plausible on its face.”Bell Atl. Corp. v. Twombly,550 U.S. 544, 570(2007).In evaluating a complaint under this standard, a court must accept as true the well-pleaded factual allegations set forth in the complaint and draw all reasonable inferences in favor of the plaintiff.Bernheim v. Litt,79 F.3d 318, 321(2d Cir.1996).While the plausibility standard “does not require detailed factual allegations, ” it “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”Ashcroft v. Iqbal,556 U.S. 662, 678(2009);see alsoCantor Fitzgerald Inc. v. Lutnick,313 F.3d 704, 709(2d Cir.2002)(stating that a court need not give “credence to [a]plaintiff's conclusory allegations”).“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”Iqbal,556 U.S. at 678(citingTwombly,550 U.S. at 555).“A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient to survive a motion to dismiss under Rule 12(b)(6).Iqbal,556 U.S. at 678(internal quotation marks omitted).

Where, as here, a plaintiff proceeds pro se, his complaint “must be held to less stringent standards than formal pleadings drafted by lawyers.”Erickson v. Pardus,551 U.S. 89, 94(2007)(quotation marks omitted)(quotingEstelle v. Gamble,429 U.S. 97, 106(1976)).When considering a motion to dismiss a pro se complaint, “courts must construe [the complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggest[s].”Weixel v. Bd. of Educ. of City of New York,287 F.3d 138, 145-46(2d Cir.2002).

A complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.See, e.g., Hart v. FCI Lender Servs., Inc.,797 F.3d 219, 221(2d Cir.2015)(citingFed.R.Civ.P. 10(c)(“A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion.A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”)).A complaint does not include allegations raised for the first time in opposition to a motion to dismiss and such allegations do not automatically amend the complaint.SeeO'Brien v. Nat'l Prop. Analysts Partners,719 F.Supp. 222, 229(S.D.N.Y.1989)(“[I]t is axiomatic that the Complaint cannot be amended by the briefs in opposition to a motion to dismiss.”);Capers v. Kirby Forensic Psychiatric Ctr.,13-cv-6953 (AJN), 2016 WL 817452, at *2(S.D.N.Y.Feb. 25, 2016)(applying rule against amending complaint by the briefs to pro se plaintiff).A court may, however, consider new allegations in an opposition brief “in determining whether to grant [the plaintiff] leave to file a[n] . . . Amended Complaint.”Capers,2016 WL 817452, at *2;see alsoJordan v. Chase Manhattan Bank,91 F.Supp.3d 491, 500(S.D.N.Y.2015).

II.Rehabilitation Act Claims

Under the Rehabilitation Act, Plaintiff checked boxes indicating allegations of failure to hire, unlawful termination, failure to promote, failure to provide reasonable accommodations, disparate treatment, retaliation, and a hostile work environment.Sec. Am. Compl. at 5.He further specifies that the SSA denied him leave and suspended him and caused permanent damage to his hip by failing to provide reasonable accommodations.Id.I first consider Defendant's argument that Plaintiff failed to exhaust most of his claims, and then address the potential claims in turn.

A.Exhaustion

“The Rehabilitation Act requires that an employee exhaust certain administrative requirements prior to filing a suit in district court.”Hodges v. Att'y Gen. of U.S.,976 F.Supp.2d 480, 490(S.D.N.Y.2013).Under EEOC regulations, the “employee must first seek EEO counseling within forty-five days of the allegedly discriminatory act.”Boos v. Runyon,201 F.3d 178, 181(2d Cir.2000);see also29 C.F.R §1614.105(a)(1).The regulations require that that counselor conduct a final interview with the aggrieved employee within 30 days of the initial contact, unless he or she agrees in writing to postpone the final interview and extend the counseling period for an additional period of no more than 60 days.29 C.F.R. §§ 1614.105(d)-(e).If the complaint is not resolved, then the employee may file a complaint with “the agency that...