Murtha v. N.Y. State Gaming Comm'n
| Decision Date | 17 September 2019 |
| Docket Number | No. 17 Civ. 10040 (NSR),17 Civ. 10040 (NSR) |
| Parties | JAMES MURTHA, Plaintiff, v. NEW YORK STATE GAMING COMMISSION, BRIAN BARRY, DR. STEPHANIE WOLF, and THOMAS KOTARSKI, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff James Murtha brings this action pursuant to Title I and Title V of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq., seeking redress for Defendants' alleged unlawful employment discrimination. Plaintiff filed a First Amended Complaint on August 2, 2018. (ECF No. 16.) Plaintiff avers, inter alia, that he was discriminated against on the basis of his age and alleged disability while working for Defendant New York State Gaming Commission. (Id. ¶¶ 2, 12.)
Presently before the Court is Defendants' motion to dismiss Plaintiff's claims under the ADEA and the NYSHRL, and Plaintiff's claims sounding in discrimination under the ADA, and to dismiss in part Plaintiff's claim sounding in retaliation under the ADA, for failure to state a claim for which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 22.) For the following reasons, Defendants' motion is GRANTED in part and DENIED in part.
The following facts are drawn from the First Amended Complaint ("FAC") and are accepted as true for the purposes of this motion.
Between September of 2014 and September 30, 2017, Plaintiff was employed by Defendant New York State Gaming Commission ("NYSGC") as a racing inspector at its Yonkers Raceway. (Id. ¶ 12.) Plaintiff was approximately 53-years-old at the time of his hire. Plaintiff's duties included inspecting and testing horses involved in races at Yonkers Raceway. (Id. ¶ 13.) His work regularly required him to work in the horses' stalls, where Plaintiff would perform such tasks as taking urine samples from the horses. (Id.) Plaintiff's other duties included identifying horses outside of the stalls ("ID work"). (Id. ¶ 15.)
Plaintiff states that he was offered his job with the NYSGC by Defendant Brian Barry, the Director of Racing Officials for the NYSGC. (Id. ¶ 9.) According to Plaintiff, Barry interviewed Plaintiff and offered Plaintiff employment with the NYSGC immediately after the interview, without consulting with anyone else as to Plaintiff's hire. (Id.) During the time that Plaintiff worked for the NYSGC, Barry had the power to fire employees and did so. (Id.) Defendants Dr. Stephanie Wolf and Thom Kotarski1 were the Supervising Racing Veterinarian and Supervising Inspector, respectively, of the NYSGC at Yonkers Raceway. (Id. ¶¶ 10-11.) Wolf and Kotarski were Plaintiff's direct supervisors, and Barry was the direct supervisor of Wolf and Kotarski. (Id. ¶¶ 9-11.)
In December of 2014, Plaintiff began to develop the symptoms of a respiratory allergy, including a burning throat, raspy and hoarse voice, burning and aching sinuses, lung pain,shortness of breath, and disorientation. (Id. ¶ 15.) The symptoms abated when Plaintiff was assigned to perform ID work, which took place outside of the horses' stalls. (Id.) Plaintiff's allergic symptoms led to multiple hospitalizations and required Plaintiff to take several periods of extended leave. (Id. ¶¶ 16-23.) Ultimately, in early 2017, Plaintiff was diagnosed by an immunologist with occupational induced asthma. (Id. ¶ 24.)
In 2015, Plaintiff told Barry, Kotarski, Wolf, nonparty Presiding Racing Judge Nick Ferriero, and other nonparty supervisors about his asthma and respiratory issues, and his need to take medication and fresh air breaks to cope with those issues. (Id. ¶ 25.) In the spring of 2017, Plaintiff asked to be assigned duties outside of the stalls, particularly performing ID work, but his requests were denied. (Id. ¶¶ 26-27.) When Plaintiff asked Kotarski if he could be moved out of the stalls, even temporarily, Kotarski sent Plaintiff to Ferriero, then to Wolf, and then to Barry, none of who granted Plaintiff's request. (Id. ¶ 31.) Plaintiff wrote to Barry about his request to be moved out of the stalls and about alleged harassment he claimed to be experiencing, as detailed below, in July of 2017, but Barry took no action in response to Plaintiff's letter. (Id. ¶ 32.) Instead, Plaintiff avers that after he made his requests, his supervisors kept him working inside the stalls for longer periods than any of his co-workers who were also racing inspectors. (Id. ¶ 27.) Specifically, when Plaintiff informed Wolf that he was having an asthma attack, she insisted that he stay longer with the horses in the stalls. (Id. ¶ 28.) Plaintiff does not specify when this incident occurred or allege that similar incidents occurred on other occasions.
Plaintiff states that other racing inspectors were permanently assigned to ID work, even though they had less experience with ID work than he did. (Id. ¶ 26.) When he was ultimately told that his supervisors would not assign him to ID work, Plaintiff learned that the assignmentwas given to a younger woman, who had less seniority than Plaintiff but who did not have any breathing, allergy, or health issues. (Id. ¶ 33.)
In the year prior to his termination, Plaintiff alleges that some of his co-workers began to harass him and joke about his asthma. (Id. ¶ 34.) One of Plaintiff' co-workers, who was aware of Plaintiff's respiratory condition, shut the air conditioning off in the break room on several occasions during the summer of 2017 and allegedly hid the remote control for it so that Plaintiff could not use it when he entered the break room to alleviate his asthma. (Id. ¶ 35.) Plaintiff filed a written complaint with nonparty Ferriero regarding one such incident on August 18, 2017, but no action was taken. (Id.)
Plaintiff also complains that other employees smoked cigarettes around him and laughed when Plaintiff told them that it triggered an asthmatic reaction. (Id. ¶ 36.) Some co-workers would sarcastically offer Plaintiff cigarettes and invite him to join them. (Id. ¶ 38.) Another co-worker smoked e-cigarettes in the heated indoor office during the winter, aggravating Plaintiff's symptoms. (Id. ¶ 37.) Plaintiff informed Kotarski and others of the e-cigarette incidents, but no action was taken. (Id.)
During his employment with the NYSGC, Plaintiff alleges that younger employees with less experience were promoted and given cleaner and more desirable jobs, while Plaintiff remained in the horses' stalls despite being verbally promised by his supervisors that he would be moved out of the stalls within one year of his hire. (Id. ¶¶ 39-40.) Plaintiff also states that his supervisors routinely pressured older workers into quitting, either by refusing to promote them or demoting them, or terminated their employment for no reason. (Id. ¶¶ 40-42.) Plaintiff cites the experiences of two former NYSGC employees as purported evidence of this practice. (Id.)
Plaintiff further alleges that younger employees were able to commit various infractions, including arriving late to work, leaving early, or watching television during work hours, without being punished. (Id. ¶¶ 43-45.) Plaintiff states that some younger employees, including Kotarski, would play baseball or basketball with the specimen cups that were meant to be kept sterile and used only for horses, and then would place damaged cups back for official use after their games. (Id. ¶ 44.) Plaintiff spoke to Kotarski and another employee about the damaged cups leaking and requested that the games stop, but his complaint was met with laughter. (Id.)
In July of 2017, Plaintiff applied for medical leave pursuant to the FMLA. (Id. ¶ 46.) On August 17, 2017, Plaintiff was granted a general approval of up to twelve weeks of leave. (Id.) However, Plaintiff did not take that leave, because he heard from Kotarski, Wolf, and other employees that Barry was very angry with him for applying for FMLA leave. (Id. ¶¶ 47-48.)
On July 26, 2017, Plaintiff filed a Charge of Discrimination (the "EEOC Charge") with the United States Equal Employment Opportunities Commission ("EEOC") by completing the EEOC's Intake Questionnaire. (Id. ¶ 50.) In the Intake Questionnaire, Plaintiff states that he identified the NYSGC as his employer and listed his employer's address as Yonkers Raceway. (Id.) By letter dated September 18, 2017, an EEOC investigator informed Plaintiff, inter alia, that it had notified Plaintiff's employer that Plaintiff had filed the EEOC Charge. Plaintiff states that the EEOC's letter was copied to the NYSGC at the Yonkers Raceway. (Id. ¶ 50.) Plaintiff received his notice of right to sue from the EEOC on September 30, 2017. (Id. ¶ 5.)
On September 22, 2017, and September 23, 2017, Ferriero called Plaintiff on the phone and told him not to report to work, but refused to explain the basis for his directives. (Id. ¶¶ 52-52.) Shortly thereafter, Ferriero met Plaintiff at the Yonkers Raceway and told Plaintiff that he was no longer allowed on the premises. (Id. ¶ 53.) On September 30, 2017, Plaintiff was told byFerriero that he was fired because he "didn't fit." (Id. ¶ 54.) Plaintiff's termination was confirmed by letter dated October 4, 2017. (Id.)
Plaintiff commenced this action on December 22, 2017. (ECF No. 1.) Plaintiff filed the FAC on August 2, 2018. (ECF No. 16.) Plaintiff sues: (1) Barry, in his official capacity, under Title I and Title V of the ADA, the ADEA, and the FMLA, and (2) all Defendants in their individual capacities under the NYSHRL. (FAC ¶¶ 56-85.) Plaintiff alleges that Defendants discriminated and retaliated against him on the basis of his age and disability. (Id.) Plaintiff seeks restoration of his employment and related relief under all four statu...
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