Perry v. Arc

• Decision Date: 22 November 2010
• Docket Number: NO. 10-CV-6337,10-CV-6337
• Parties: DEBORAH PERRY,Plaintiff, v. WAYNE ARC,Defendant.
• Court: U.S. District Court — Western District of New York

DEBORAH PERRY, Plaintiff,

v.WAYNE ARC, Defendant.

NO. 10-CV-6337

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

Filed: November 22, 2010

DECISION AND ORDER

APPEARANCES

For Plaintiff:

Christina A. Agola, Esq.

730 First Federal Plaza

For Defendants:

James C. Holahan, Esq.

Bond Schoeneck & King PLLC

INTRODUCTION

Siragusa, J. This is an action alleging claims under the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq., and the New York State Human Rights Law, N.Y. Executive Law § 290, et seq. ("New York Human Rights Law"). Before the Court is Defendant's motion (Docket No. 3) to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12. For the reasons stated below, the Court grants the motion.

BACKGROUND

The following facts are taken from the complaint and, for the purposes of this motion, assumed to be true. Plaintiff had been employed by Defendant from September 11, 2000 and held the position of Direct Support Professional. She was diagnosed with epilepsy at the age of ten, but submits she is capable of performing the essential functions of her job. She maintained a stellar work record during her employment. (Compl. ¶¶ 8-12.) At the time she was hired, Plaintiff disclosed her epilepsy and informed all managers, assistant managers and nurses of her condition. (Compl. ¶ 13.)

On June 28, 2009, Plaintiff requested permission to leave work early, but was unable to contact her supervisor, Troy Wing, and, "instead, left a voice mail message to inform him that she may have suffered a seizure the night before and wanted to leave work early to seek medical attention." (Compl. ¶ 14-15.) She called and left the same information in a voice mail message for Natalie Wavrick, the Program Coordinator, and called on Coordinator Craig Arnold, who gave her permission to leave early. (Compl. ¶¶ 16-17.)

On or about the second week of July 2008, Plaintiff had returned from her scheduled vacation and her supervisor, Troy Wing, informed her that she needed to produce a "fit for duty certificate" from her treating physician. (Compl. ¶ 18.) Plaintiff was also advised by her human resources specialist¹ "that since she 'recently had an episode' that the defendant wanted to know is it was [sic] 'safe' for Plaintiff 'to be left alone with consumers.'" (Compl. ¶ 19.) She also claims that the human resources specialist said to her "that she too 'would be upset if she had [Plaintiff's] condition'." (Compl. ¶ 20.) Defendant "revoked Plaintiff's driving privileges in lieu of the physician's certification." (Compl. ¶ 21.) "Plaintiff complained to her supervisor regarding discriminatory treatment against [sic] due to her medical condition...." (Compl. ¶ 22.) She then produced a report from her treating physician indicating that she had no restrictions. (Compl. ¶ 23.)

Plaintiff alleges that, "[t]hereafter, Plaintiff was retaliated against by her supervisor who would visit the work place unannounced at 6:00 a.m. demanding that she produce a fit to work certification from a neurologist." (Compl. ¶ 24.) She also contends that she was removed from a group home in which she was the only staff member overseeing "'consumers'" and placed in a home with a minimum staff of five and whose "'consumers'" are gone for most of the day. (Compl. ¶ 25.) She also alleges that she "was informed that her primary physician's note was not acceptable and if she did not produce a medical report from her neurologist, she would 'suffer consequences.'" (Compl. ¶ 26.)

On July 16, 2009, Plaintiff filed a complaint with the New York State Division of Human Rights alleging that she had been subject to discrimination related to her employment in violation of the New York Human Rights Law. On July 17, 2009, she informed her employer that she needed to take leave under the FMLA "due to a serious health condition (epilepsy) that made her unable to perform the essential functions of her job." (Compl. ¶¶ 27-28.) Defendant granted Plaintiff the leave she requested.

Plaintiff returned to work on or about the second week in July 2008. Subsequently, on June 4, 2010, Plaintiff alleges she "received her first and only 'Verbal Counseling' by her supervisor since she had been employed by defendant." (Compl. ¶ 29.)

Plaintiff pleads the following causes of action: First, that Defendant perceived her as disabled, impermissibly determined she was unable to perform the essential functions of her job, revoked her driving privileges, and made discriminatory comments to Plaintiff regarding her disability in violation of the ADA; Second, that she complained to management about the discrimination and filed a charge of discrimination on July 16, 2009, and that she was subject to "adverse actions that were materially adverse to her" (Compl. ¶ 39); Third, that Plaintiff's driving privileges were revoked, her job responsibilities attenuated, and she was subject to discriminatory comments based on the perception that she was disabled and unable to perform the essential functions of her job in violation in violation of the New York Human Rights Law; Fourth, she was wrongfully disciplined as a result of requesting FMLA leave on July 17, 2009, and "placing defendant on notice of her FMLA qualifying condition." (Compl. ¶ 45.)

STANDARD OF LAW²

The U.S. Supreme Court, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), clarified the standard to be applied to a 12(b)(6) motion:

Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a Plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Id. at 1964-65 (citations and internal quotations omitted). See also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) ("To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'") (quoting Bell Atl. Corp. v. Twombly) (footnote omitted); Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) (Indicating that Bell Atl. Corp. v. Twombly adopted "a flexible 'plausibility standard, ' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible[,]" as opposed to merely conceivable.)

When applying this standard, a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (1999), cert. denied, 531 U.S. 1052 (2000). On the other hand, "[c]onclusory allegations of the legal status of the defendants' acts need not be accepted as true for the purposes of ruling on a motion to dismiss." Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995)(c/t/ng In re American Express Co. Shareholder Litig., 39 F.3d 395, 400-01 n. 3 (2d Cir.1994)). As the Supreme Court clarified in Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009):

Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555, (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we "are not bound to accept as true a legal conclusion couched as a factual allegation" (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. 490 F.3d at 157-158. But where the well-pleaded facts donot permit the court to infer more than the mere possibility of misconduct, the complaint has alleged but it has not "show[n]" "that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2).

Iqbal, 129 S. Ct. at 1949-50.

ANALYSIS

Fed. R. Civ. P. 12(b)(1) Election of Remedies and New York Human Rights Law Claim

Federal Rule of Civil Procedure 12(b)(1) permits a Court to dismiss a complaint if it is shown that it lacks subject matter jurisdiction. Here, Defendant contends that, since Plaintiff elected to file a claim with the New York State Human Rights Division, she is foreclosed from pursuing such claims in this action. In that regard, New York law states:

Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages, including, in cases of housing discrimination only, punitive damages, and such other remedies as may be appropriate, including any civil fines and penalties provided in subdivision four of this section, unless such person had filed a complaint hereunder or with any local commission on human rights,.provided that, where the division has dismissed such complaint on the grounds of administrative convenience, on the grounds of untimeliness, or on the grounds that the election of remedies is annulled, such person shall maintain all rights to bring suit as if...