Shearon v. Comfort Tech Mech. Co.

Decision Date28 March 2013
Docket NumberNo. 12–CV–96.,12–CV–96.
Citation936 F.Supp.2d 143
PartiesDavid SHEARON, Plaintiff, v. COMFORT TECH MECHANICAL CO., INC., Defendant.
CourtU.S. District Court — Eastern District of New York


Michael Lynn Ferch, New York, NY, for Plaintiff.

Alan B. Pearl, Portnoy, Messinger, Pearl & Associates, PC, Syosset, NY, Gina Ianne Grath, Alan B. Pearl & Associates, Syosset, NY, for Defendant.


WILLIAM F. KUNTZ, II, District Judge.

David Shearon (Plaintiff) commenced this action against his former employer, Comfort Tech Mechanical Co. (“CTM” or Defendant), on January 9, 2012, alleging three causes of action for disability discrimination in violation of (1) the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101; (2) the New York State Human Rights Law (“NYHRL”), N.Y. Exec. Law § 290; and (3) the New York City Human Rights Law (“NYCHRL”), N.Y. City Admin. Code § 8–107. Plaintiff also asserts three state common law claims arising out of his employment with Defendant: (1) unjust enrichment, (2) quantum meruit, and (3) negligent infliction of emotional distress (“NIED”). Defendant moves to dismiss the five non-ADA claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and (6). Plaintiff cross-moves to amend the original complaint in order to add four additional causes of action and one additional defendant, Stuart Ellert, a CTM principal. For the reasons stated below, this Court dismisses Plaintiff's state statutory and common law claims, grants Plaintiff's cross-motion to amend in part, and denies the cross-motion to amend in part.

I. Factual Background

The following facts are taken from the original complaint, including documents, such as the relevant local union collective bargaining agreement, which are incorporated into the complaint by reference. For purposes of deciding Defendant's motion to dismiss for failure to state a claim, the Court assumes these facts to be true and construes them in the light most favorable to Plaintiff, the non-moving party.

Plaintiff was employed by Defendant as a heating, ventilation, and air conditioning (“HVAC”) worker from May 2008 through January 2011. Compl., at ¶ 10. During that time, HVAC workers employed by Defendant were covered by a local union collective bargaining agreement (the “CBA”), which set forth the terms and conditions of their employment. Id. at ¶ 11; Affirm, in Supp. of Def.'s Mot. to Dismiss (“Pearl Affirm.”), Ex. D. The union bargaining representative was known as International Union of Operating Engineers Local 295 (“Local 295”). Pearl Affirm., Ex. D. Plaintiff made numerous inquiries during his employment with Defendant, but Defendant consistently denied that Defendant was a “union shop.” Proposed First Am. Compl. (Prop. Am. Compl.”), at ¶¶ 16, 65. Further, although Plaintiff claims his employment was covered by the CBA, at no time during Plaintiff's employment did Defendant offer him union membership, an omission that Plaintiff claims violated the CBA. Compl., at ¶ 12. Because Plaintiff was not a union member, Defendant paid him hourly wages significantly lower than those received by union employees. Id. at ¶ 14. Plaintiff was also denied union fringe benefits such as health and dental insurance, and pension contributions. Id. at ¶¶ 13–14.

On or about January 25, 2011, Plaintiff requested a leave of absence for personal reasons, including alcohol counseling and rehabilitation. Id. at ¶ 15. In response, Stuart Ellert, a CTM principal, said, “Oh no, we can't have this!” or words to that effect. Id. at ¶ 16. Defendant ultimately granted Plaintiff a leave of absence; soon thereafter, Plaintiff enrolled in an alcohol rehabilitation program. Id. at ¶¶ 1819. However, on or about February 28, 2011, with full knowledge that Plaintiff was in treatment, Defendant terminated Plaintiff's employment. Id. at ¶ 20.

Before initiating the instant action, Plaintiff filed a complaint with the New York State Division of Human Rights (“NYSDHR”), due to Defendant's termination of his employment. Pearl Affirm., Ex. B. Plaintiff alleged in the complaint that his alcohol problem was a disability, that Defendant terminated Plaintiff because of that disability, and that the termination constituted unlawful discrimination under the NYHRL. Id. On August 24, 2011, after a full investigation, the NYSDHR dismissed the complaint, finding “no probable cause” to believe that Defendant had engaged in unlawful discrimination. Pearl Affirm., Ex. C. The NYSDHR's determination was based on its finding that during Plaintiff's leave of absence, he had driven a company vehicle without authorization, despite explicit warnings to refrain from doing so and knowledge of a company policy stating that unauthorized use of a company vehicle would result in immediate dismissal. Id. The NYSDHR found that Plaintiff's termination was due to his unauthorized use of a company vehicle and not the result of discrimination based on disability. Id.

Plaintiff later received a right to sue letter from the U.S. Equal Employment Opportunity Commission (“EEOC”) dated October 5, 2011; the letter adopted the findings of the NYSDHR, as described above, and informed Plaintiff of his right to sue in federal court. Compl., Ex. A. Plaintiff filed the instant action on January 9, 2012.

II. Applicable LawA. Legal Standards

1. Motion to Dismiss Under Fed.R.Civ.P. 12(b)(1)

The Court must dismiss a claim for lack of subject matter jurisdiction under Rule 12(b)(1) when it lacks the statutory or constitutional power to adjudicate it. Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). [J]urisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.” Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998). The party asserting subject matter jurisdiction has the burden of proving its existence by a preponderance of the evidence. Makarova, 201 F.3d at 113. In determining whether subject matter jurisdiction exists, courts are permitted to look to materials outside the pleadings, including affidavits.” J.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir.2004).

2. Motion to Dismiss Under Fed.R.Civ.P. 12(b)(6)

In considering a motion to dismiss pursuant to Rule 12(b)(6), the Court construes the claims liberally, “accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). To survive a motion to dismiss, each claim must set forth sufficient factual allegations, accepted as true, “to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Court need not credit “legal conclusions” in a claim or “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009) (quoting Iqbal, 556 U.S. at 678, 129 S.Ct. 1937) (internal quotations and alteration omitted).

When determining the sufficiency of a claim under Rule 12(b)(6), the Court may consider only the allegations on the face of a pleading. Nevertheless, [d]ocuments that are attached to the complaint or incorporated in it by reference are deemed part of the pleading and may be considered.” Roth v. Jennings, 489 F.3d 499, 509 (2d Cir.2007). The Court may consider documents outside of the pleading if the documents are integral to the pleading or subject to judicial notice. Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 156 (2d Cir.2006); see also Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir.1995) ([T]he complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference.”).

3. Motion for Leave to Amend Under Fed.R.Civ.P. 15(a) and 21

Leave to file an amended complaint “shall be freely given when justice so requires,” Fed.R.Civ.P. 15(a), and “should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility.” Milanese v. Rust–Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). While granting leave to amend is generally favored, “it is within the sound discretion of the court whether to grant leave to amend.” John Hancock Mut. Life. Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir.1994).

A proposed amendment is futile if it “could not withstand a motion to dismiss pursuant to Rule 12(b)(6).” Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir.2002). Thus, a court must deny a motion to amend if it does not contain enough factual allegations, accepted as true, to state a claim for relief that is “plausible on its face.” Riverhead Park Corp. v. Cardinale, 881 F.Supp.2d 376, 379 (E.D.N.Y.2012) (Spatt, J.) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (denying motion to add claims for malicious prosecution as futile); see also Hunter v. Deutsche Lufthansa AG, 863 F.Supp.2d 190, 202–03 (E.D.N.Y.2012) (Dearie, J.) (denying motion to add new claims and a new defendant as futile); Scottrade, Inc. v. BroCo Investments, Inc., 774 F.Supp.2d 573, 584 (S.D.N.Y.2011) (Holwell, J.) (denying motion to add claims for securities fraud as futile).

To the extent a proposed amendment would add new parties, the motion is governed by Rule 21, which states, “the court may at any time, on just terms, add or drop a party.” Fed.R.Civ.P. 21; Addison v. Reitman Blacktop, Inc., 283 F.R.D. 74, 79 (E.D.N.Y.2011) (Spatt, J.). In practice, the standard for deciding whether to allow the addition of defendants is “the same standard of liberality afforded to motions to amend pleadings under Rule 15.” Addison, 283 F.R.D. at 79 (quoting Soler v. G & U, Inc., 86 F.R.D. 524, 528 (S.D.N.Y.1980) (Tenney,...

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