Separ v. Cnty. of Nassau

• Court: U.S. District Court — Eastern District of New York
• Writing for the Court: JAMES M. WICKS, UNITED STATES MAGISTRATE JUDGE
• Decision Date: 13 January 2023
• Docket Number: 21-CV-00010 (JS) (JMW)
• Citation: Separ v. Cnty. of Nassau, 21-CV-00010 (JS) (JMW) (E.D. N.Y. Jan 13, 2023)
• Parties: ANNE SEPAR, Plaintiff, v. COUNTY OF NASSAU and NASSAU COUNTY DEPARTMENT OF SOCIAL SERVICES, Defendants.

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ANNE SEPAR, Plaintiff, v. COUNTY OF NASSAU and NASSAU COUNTY DEPARTMENT OF SOCIAL SERVICES, Defendants.

No. 21-CV-00010 (JS) (JMW)

United States District Court, E.D. New York

January 13, 2023

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

Suffolk County Department of Law

For Defendant County of Nassau and Nassau County Department of Social Services

REPORT AND RECOMMENDATION

JAMES M. WICKS, UNITED STATES MAGISTRATE JUDGE

At issue here is whether Plaintiff Anne Separ has sufficiently re-pled her previously dismissed claims for failure to promote under 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 is Defendants' motion to dismiss the Second Amended Complaint (“SAC”).^[1] (DE 39.)

Plaintiff, a sixty-eight-year-old female civil servant, commenced this action alleging that Defendants County of Nassau and Nassau County Department of Social Services discriminated against her based on her age and disability and retaliated against her for complaining about that discrimination. (DE 14.) Defendants filed a motion to dismiss (“First Motion to Dismiss”) which, following a January 28, 2022, report and recommendation issued by the undersigned (“R&R”), adopted by the District Judge, was granted in part and denied in part by the Court on March 22, 2022. (DE 27; DE 33.) Plaintiff's ADEA and ADA overtime claims and claims accruing prior to July 13, 2019, were dismissed, along with Plaintiff's claims for failure to promote under the ADEA and ADA and NYHRL claims. (Id.) Plaintiff's timely retaliation claims survived. (Id.) The Court further granted Plaintiff leave to replead her ADEA, ADA, and NYHRL failure to promote claims. (Id.)

On May 3, 2022, Plaintiff amended her complaint (“SAC”). (DE 36.) Before the Court, on referral from the Honorable Joanna Seybert, is Defendants' motion to dismiss Plaintiff's failure to promote claims asserted in the SAC pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 39-1; DE 39-5.) Plaintiff opposes the motion. (DE 39-2, 3, 4.) For the reasons set forth below, the undersigned respectfully recommends that Defendants' motion be GRANTED, without further leave to replead.

I. FACTUAL BACKGROUND

The following allegations are drawn from Plaintiff's SAC and are assumed true for the purposes of the motion to dismiss.

Plaintiff is a sixty-eight-year-old female who has worked for Defendants since 1987 in the Child Support Enforcement Unit. (DE 36 at ¶ 1.) Plaintiff received a breast cancer diagnosis in 1996, prompting Defendants to initiate a practice of discrimination against Plaintiff based on that diagnosis. (Id. at ¶ 2.) 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 ¶¶ 18-24.) As a result, Plaintiff sued Defendants four times, prevailing twice at trial, and settling the other actions. (Id. at ¶¶ 2-3; 15-24.) The most recent of those actions culminated in an August 2015 jury verdict in Plaintiff's favor. (Id. at ¶¶ 24.)^[2]

Despite Plaintiff's repeated legal actions, Defendants continued to overlook her for CSI III position openings throughout 2015 and 2016. (Id. at ¶¶ 20-32.) 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. at ¶¶ 27-28.) 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. at ¶¶ 29-31.) 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. at ¶ 31)

In April 2018, Plaintiff received an overwhelmingly positive performance evaluation, and passed probation to obtain her permanent CSI III Title. (Id. at ¶ 33.) One month later, 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 ¶ 34.) In the midst of these surgeries, Plaintiff's direct supervisor encouraged her to apply for the vacant Assistant Director (“AD”) position. (Id. at ¶ 35.)

Defendants conducted interviews for the AD position in October of 2018. (Id. at ¶ 36.) Defendants 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. at ¶ 37.) 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 ¶ 38.) 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. at ¶ 39.) Plaintiff alleges that based on her experience, supervisor recommendation, and high-test score, Plaintiff was qualified for the AD Position. (Id.)

Plaintiff, however, was not even offered an interview for the AD position. (Id. at ¶ 40.) Rather, Defendants filled the position with Deborah Parker, a fifty-five-year-old, non-disabled candidate with no history of legal action against Defendants. (Id. at ¶¶ 40-41.) Plaintiff alleges that Ms. Parker “was and is significantly less qualified for the AD position” than Plaintiff. (Id. at ¶ 41.)

Specifically, Plaintiff “had more experience in the [Nassau County Department of Social Services], had a longer tenure, was more familiar with the Department's staff and employees and had better knowledge of the Department's policies and programs.” (Id.) Plaintiff was further qualified because she possesses “superior leadership skills and qualifications” to those of Ms. Parker. (Id.) Indeed, Plaintiff alleges Ms. Parker “lacked familiarity with the protocols, systems, and processes for the position,” all of which Plaintiff possessed. (Id.)

The decision to not hire Plaintiff was made, in part, by Department of Social Services Deputy Commissioner Paul F. Broderick and Human Resources manager Jeanne Dhande. (Id. at ¶ 43.) Mr. Broderick had previously testified at Plaintiff's 2011 trial against Defendants which concerned discrimination based on Plaintiff's diagnosis of breast cancer and thus was uniquely aware of Plaintiff's age, disability and prior lawsuits against Defendants. (Id. at ¶¶ 44.) Plaintiff alleges she was clearly denied the promotion to AD based on her age, disability, and in retaliation for her prior lawsuits. (Id. at ¶ 45.) Had she been promoted, Plaintiff would have received a substantial pay increase. (Id.)

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 ¶¶ 46-52.) 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.)

On February 18, 2020, Plaintiff filed a notice of claim against Defendants and subsequently attended a 50-H hearing. (Id. at ¶¶ 10-11.) On May 8, 2020, Plaintiff timely filed a Charge of Discrimination with the EEOC and New York State Division of Human Rights. (Id.) On April 26, 2021, the EEOC issued Plaintiff a Notice of Right to Sue. (Id.)^[3]

II. PROCEDURAL HISTORY

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 First Motion to Dismiss pursuant to Rule 12(b)(6) on September 8, 2021. (DE 26.) The Honorable Denis R. Hurley, the district judge then presiding over the matter, referred the present motion to the undersigned for a Report and Recommendation on September 9, 2021. (Electronic Order, dated Sept. 9, 2021.)

On January 28, 2022, the undersigned recommended that Plaintiff's federal failure to promote claims under the ADEA and ADA be dismissed because Plaintiff failed to meet the "but-for" standard for age discrimination nor did the facts give rise to an inference of unlawful discrimination under the ADA. (DE 27.) The undersigned recommended that the motion be denied as to Plaintiff's NYSHRL failure to promote claim. (Id.)

Defendants filed objections to the R&R (DE 28) and on March 22 2022, Judge Hurley adopted the undersigned...