Separ v. Cnty. of Nassau
| Decision Date | 28 January 2022 |
| Docket Number | 21-CV-00010 (DRH) (JMW) |
| Parties | ANNE SEPAR, Plaintiff, v. COUNTY OF NASSAU and NASSAU COUNTY DEPARTMENT OF SOCIAL SERVICES, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Paul Andrew Bartels, Lauren Ruth Reznick Bell Law Group, PLLC For Plaintiff Anne Separ.
Howard Marc Miller, Jacqueline Giordano Bond, Schoeneck & King PLLC For Defendants County of Nassau and Nassau County Department of Social Services.
Jennean R. Rogers For Defendant County of Nassau and Nassau County Department of Social Services.
REPORT AND RECOMMENDATION
This lawsuit is the latest chapter in Plaintiff Anne Separ's prolonged struggle against Defendants County of Nassau and Nassau County Department of Social Services over repeated allegations of discriminatory conduct. Plaintiff, a sixty-eight-year-old female civil servant, commenced this action- which, according to the amended complaint, is her fifth brought against Defendants since 1997-alleging that Defendants discriminated against her based on her age and disability and retaliated against her for complaining about that discrimination in violation of the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621 et seq. the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the New York Human Rights Law (“NYHRL”), N.Y. Exec. Law § 290 et seq.
Before the Court, on referral from the Honorable Denis R. Hurley, is Defendants' motion to dismiss the amended complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposes the motion. For the reasons set forth below, the undersigned respectfully recommends that Defendants' motion be granted in part and denied in part.
The following allegations, drawn from Plaintiff's amended complaint, are presumed true for the purposes of the motion to dismiss. Plaintiff is a sixty-eight-year-old female who has worked for Defendants since 1987. (DE 14 at 5.) She began her employment as a clerk-typist and, due to her stellar job performance, was promoted to Child Support Investigator (“CSI”) I in 1989 and then to CSI II in 1991. (Id.) Plaintiff received a breast cancer diagnosis in 1996, prompting Defendants to initiate a practice of discrimination against Plaintiff based on the diagnosis. (Id. at 1.) This discriminatory conduct included denying Plaintiff promotions to CSI III and transferring her to an unsafe building with high levels of asbestos and carcinogens. (Id. at 5-6.) As a result, Plaintiff sued Defendants four times, prevailing twice at trial and settling the other actions. (Id.) The most recent of those actions culminated in an August 2015 jury verdict in Plaintiff's favor. (Id. at 6.)
Despite Plaintiff's repeated legal action, Defendants continued to overlook her for CSI III position openings throughout 2015 and 2016. (Id. at 7.) Plaintiff then filed an Equal Employment Opportunity Commission (“EEOC”) charge in 2017 based on the denied promotion but was ultimately promoted to CSI III in January 2018. (Id.) Despite achieving the title of CSI III, however, Plaintiff was only promoted to Grade 13, Step 7, which was seven steps lower in position than what she would have realized if promoted in 2008. (Id.) In turn, Plaintiff experienced “a significant salary decrease” as a result of the delayed promotion, so much so that Plaintiff was the lowest paid CSI III in Nassau County despite her seniority.
(Id.) Defendants paid younger, non-disabled CSI IIIs-none of whom had commenced legal action against Defendants-higher salaries than Plaintiff. (Id.)
In May 2018, Plaintiff's cancer returned, requiring her to undergo surgeries in August and October 2018, both of which Defendants were aware of. (Id. at 8.) In the midst of these surgeries, Plaintiff's direct supervisor encouraged her to apply for the vacant Assistant Director (“AD”) position. (Id.) Defendant denied Plaintiff an interview, though, and explained “that she needed to have been in her position as a CSI III for seven . . . years to qualify for” the AD position. (Id.) The Department of Social Services Commissioner John Imhof later informed Plaintiff that employees did not have to be CSI IIIs for seven years to apply to the AD position. (Id.)
On March 16, 2019, Plaintiff took the civil service test for the AD position. (Id. at 9.) On November 15, 2019, Plaintiff learned that she received the third-highest score on the exam and was therefore third on the promotion list for the AD position. (Id.) Defendants, however, declined to interview Plaintiff for the position, and instead filled the position with Deborah Parker, a fifty-five-year-old, nondisabled candidate with no history of legal action against Defendants. (Id.) Although Ms. Parker received a hundred percent-the top grade-on the civil service test (DE 26-2), Plaintiff alleges that she “was and is significantly less qualified for the AD Position than” Plaintiff (DE 14 at 9). Specifically, Plaintiff avers that she “had more experience in the [d]epartment, had longer tenure, was more familiar with the [d]epartment's staff and employees[, ] had better knowledge of the [d]epartment's policies and programs[, ] [and] possesses superior leadership and qualifications than Ms. Parker.” (Id.) The decision to not hire Plaintiff was made, in part, by Department of Social Services Deputy Commissioner Paul F. Broderick, who had previously testified at Plaintiff's 2011 trial against Defendants which concerned discrimination based on Plaintiff s diagnosis of breast cancer. (Id. at 9-10.)
Following their decision to deny Plaintiff's promotion to the AD position, Defendants engaged in a number of additional “adverse acts” against Plaintiff. (Id. at 10.) Specifically, on May 24, 2019, Plaintiff and her unit-a group of employees all over the age of forty-were “reassigned and demoted to a previously disbanded unit” and were replaced with less experienced employees under the age of forty. (Id.) In April and May of 2020, all CSI III's worked overtime except for Plaintiff, despite her requests to do so. (Id.) And finally, in June 2020, Defendants “moved Plaintiff to a more hazardous location . . . for no reason. (Id.) Defendants denied Plaintiff's request to return to her former location, despite the request being for medical reasons. (Id.)
As relevant here, Plaintiff filed an EEOC charge against Defendants on May 7, 2020. (DE 14-1.) The EEOC charge alleges that Defendants discriminated against Plaintiff between June 1997 and December 15, 2019 and provides factual allegations akin to the above. (Id.) Absent from Plaintiff's EEOC charge, however, is any allegation regarding Plaintiff's unheeded requests for overtime in April and May of 2020. (Id.)
Plaintiff commenced this action by filing a complaint on January 3, 2021. (DE 1.) Plaintiff then filed an amended complaint as a matter of course on April 26, 2021. (DE 14.) On June 17, 2021, the undersigned granted Defendants' unopposed motion to stay discovery pending the outcome of Defendants' motion to dismiss. (DE 20; see Separ v. Cnty. of Nassau, 21-CV-00010 (DRH) (JMW), 2021 WL 2474263 (E.D.N.Y. June 17, 2021).) Defendants filed the present motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on September 8, 2021. (DE 26.) The Honorable Denis R. Hurley then referred the present motion to the undersigned for a Report and Recommendation on September 9, 2021. (Electronic Order dated Sept. 9, 2021.)
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint is properly dismissed where, as a matter of law, “the allegations in a complaint, however true, could not raise a claim of entitlement to relief.” Twombly, 550 U.S. at 558. When resolving a motion to dismiss, the Court must assume all well-pleaded facts to be true, “drawing all reasonable inferences in favor of the plaintiff.” Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012). That tenet, however, does not apply to legal conclusions. See Iqbal, 556 U.S. at 678. Pleadings that offer only “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. More is required.
Where as here, a case involves allegations of discriminatory conduct, a motion to dismiss must be examined through a somewhat modified lens. In Littlejohn v. City of New York, the Second Circuit provided guidance on the motion to dismiss standard applicable to such cases, keeping in place the plausibility requirement of Iqbal and Twombly but making clear that, to survive a motion to dismiss, a plaintiff alleging discriminatory conduct “need only give plausible support to a minimal inference of discriminatory motivation” rather than “give plausible support to the ultimate question of whether the adverse employment action was attributable to discrimination.” 795 F.3d 297, 311 (2d Cir. 2015). This standard conforms to the McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) framework, which, in short, protects plaintiffs in discrimination actions from early-stage dismissal by relaxing the requirements of a prima facie case while increasing the requirements as the case progresses to trial. Littlejohn, 795 F.3d at 307 (discussing the McDonnell Douglas framework). In other words,...
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