Sosa v. N.Y.C. Dep't of Educ. & Marcy Berger

• Decision Date: 25 March 2019
• Docket Number: 18-CV-00411 (PKC) (SJB)
• Citation: 368 F.Supp.3d 489
• Parties: Alice SOSA, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION and Marcy Berger, Defendants.
• Court: U.S. District Court — Eastern District of New York

368 F.Supp.3d 489

Alice SOSA, Plaintiff,

v.NEW YORK CITY DEPARTMENT OF EDUCATION and Marcy Berger, Defendants.

18-CV-00411 (PKC) (SJB)

United States District Court, E.D. New York.

Signed March 25, 2019

MEMORANDUM & ORDER

PAMELA K. CHEN, United States District Judge:

Plaintiff Alice Sosa ("Plaintiff") brings this action against the New York City Department of Education and Marcy Berger ("Defendants"), alleging violations of 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 12101 et seq. ("American with Disabilities Act" or "ADA"), New York State Executive Law § 296 et seq. ("New York State Human Rights Law"), and the New York City Administrative Code § 8-101 et seq. and § 8-107(15) ("New York City Human Rights Law").¹ On June 8, 2018, Defendants filed a motion to dismiss. (Dkt. 18.) On June 12, 2018, the motion was referred to the Honorable Sanket J. Bulsara, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.1(d). On November 13, 2018, Judge Bulsara ordered additional briefing on the issue of exhaustion as a defense. In his Report and Recommendation ("R & R"), issued January 22, 2019, Judge Bulsara recommends that the Court (1) dismiss Plaintiff's federal claims; (2) decline to exercise supplemental jurisdiction over Plaintiff's state law claims; and (3) grant Plaintiff leave to amend. (See R & R, Dkt. 30, at 2.) On February 5, 2019, Plaintiff timely filed objections to Judge Bulsara's R & R. (See generally Plaintiff's Objections to Report and Recommendation ("Pl.'s Objs."), Dkt. 31.) Finding no merit to Plaintiff's objections and no error in Judge Bulsara's decision, the Court adopts the R & R in its entirety and grants Defendants' motion to dismiss.

STANDARD OF REVIEW

A district court reviewing a magistrate judge's recommended ruling "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). With respect to a magistrate judge's recommendation on a dispositive matter, the Court reviews de novo those determinations as to which a party has specifically objected. See id. ("A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."); Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to."). However, "objections that are merely perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original papers will not suffice to invoke de novo review." Frankel v. New York City , No. 06-CV-5450, 2009 WL 465645, at *2 (S.D.N.Y. Feb. 25, 2009) (quotation and brackets omitted). Accordingly, "[g]eneral or conclusory objections, or objections which merely recite the same arguments presented to the magistrate judge, are reviewed for clear error." Chime v. Peak Sec. Plus, Inc. , 137 F.Supp.3d 183, 187 (E.D.N.Y. 2015) (quotation omitted).

DISCUSSION

Plaintiff raises four objections to the R & R. Specifically, she argues that the R & R erroneously analyzed whether she adequately alleged:

(1) that she sustained an adverse employment action, as part of her unlawful discrimination claims;

(2) that her workplace was characterized by objectively hostile conduct, as part of her hostile work environment claims;

(3) that her hostile work environment was caused by Defendants' racial animus, as part of her hostile work environment claims; and

(4) that she is similarly situated to her colleagues, as part of her disparate treatment claims.²

On a motion to dismiss, the Court treats the elements of a prima facie case as "an outline of what is necessary to render a plaintiff's employment discrimination claims for relief plausible." Barrett v. Forest Labs., Inc. , 39 F.Supp.3d 407, 429 (S.D.N.Y. 2014) (internal quotations and citation omitted); see Littlejohn v. City of New York , 795 F.3d 297, 308 (2d Cir. 2015) (the standard for prima facie case sufficiency is not a pleading requirement, but an evidentiary standard). Thus, for the Court to deem a set of factual allegations plausible, and therefore adequate to defeat a motion to dismiss, Plaintiff must allege facts that allow the Court, in substance, to infer the essential elements of a prima facie case. See Knight v. State Univ. of New York at Stony Brook , No. 13-CV-0481 (JS) (GRB), 2014 WL 4639100, at *5 (E.D.N.Y. Sept. 16, 2014).

I. Plaintiff's Objection to the R & R's Adverse Employment Action Analysis

Plaintiff objects to the R & R's conclusion that she did not sustain an adverse employment action. "A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment." Galabya v. N.Y.C. Bd. of Educ. , 202 F.3d 636, 640 (2d Cir. 2000). "A materially adverse change is a change in working conditions that is more disruptive than a mere inconvenience or an alteration of job responsibilities." Vale v. Great Neck Water Pollution Control Dist. , 80 F.Supp.3d 426, 434 (E.D.N.Y. 2015) (internal quotations and citation omitted). "Examples of materially adverse employment actions include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices ... unique to a particular situation." Feingold v. New York , 366 F.3d 138, 152 (2d Cir. 2004) (internal quotations and citations omitted).

Plaintiff alleges several adverse employment actions:

Defendants [sic] intentional failure to accommodate her medically approved and requested scheduling preferences, the partial accommodation provided, (Sosa II Compl. ¶¶ 37-39, 47-55), Berger's intentional failure to interact with Sosa during the accommodations process, (id. ¶¶ 40-46), Defendants' allegations of misconduct, (id. ¶¶ 61-63), and the inconsistent application of workplace rules as between Sosa and her colleagues, (id. ¶¶ 60).

(Pl.'s Objs. at 11.)³ As a result of these actions, Plaintiff alleges that she has suffered significant harm including an increase in her "anxiety, depression, nausea, insomnia and bladder issues ... [and] damage to her professional reputation amongst her colleagues." (Id. ) Plaintiff argues that the R & R therefore incorrectly concluded "that Defendants['] conduct was de minimis ... [and] completely disregards the impact of Defendant's [sic] conduct on the disabled plaintiff ...." (Id. at 12.) The Court disagrees with Plaintiff.

An employer's behavior does not constitute an adverse employment action because the employee sustained some generalized harm; the harm must be related to the employee's terms and conditions of employment. See Hill v. Rayboy-Brauestein , 467 F.Supp.2d 336, 352 (S.D.N.Y. 2006) (An employee must allege "material harm from [the employer's actions], such as a failure to promote or a loss of career advancement opportunities."); see also Alfano v. Costello , 294 F.3d 365, 373 (2d Cir. 2002) ("An adverse action may or may not entail economic loss but there must be a link between the discrimination and some tangible job benefits such as compensation, terms, conditions or privileges of employment.") (internal quotations and citation omitted); Smalls v. Allstate Ins. Co. , 396 F.Supp.2d 364, 371 (S.D.N.Y. 2005) ("[T[he Court also notes here that being yelled at, receiving unfair criticism, receiving unfavorable schedules or work assignments... do not rise to the level of adverse employment actions ... because they [do] not have a material impact on the terms and conditions of Plaintiff's employment.") (internal quotations and citation omitted). The conduct that Plaintiff describes, despite the significant impact that she alleges it had on her physical and mental health, does not rise to such a level as to constitute a "materially adverse change in the terms and conditions of [Plaintiff's] employment." Galabya , 202 F.3d at 640.

Plaintiff also argues that Defendants' failure to provide reasonable accommodations constitutes an actionable adverse employment action. (Pl.'s Objs. at 13 ("Because the Defendant's [sic] complained of conduct specifically relates to [Plaintiff's] ability to maintain[ ] her routine and therefore the consequences of her health regimen related to her disabilities, Sosa's claim is viable.").) Again, the Court disagrees. "While courts may consider the underlying conduct of an alleged failure to accommodate, a failure to accommodate, by itself, is not sufficient for purposes of establishing an adverse employment action." Sherman v. Cty. of Suffolk , 71 F.Supp.3d 332, 345 (E.D.N.Y. 2014) (internal quotations and citations omitted).⁴

Accordingly, given that Plaintiff has not alleged sufficient facts to show how Defendants' conduct constituted a "materially adverse change in the terms and conditions of [Plaintiff's] employment," Galabya , 202 F.3d at 640, and there is no error in the R & R regarding this issue, the Court adopts the R & R's recommendation that Plaintiff's § 1981, Title VII, and ADA claim of unlawful discrimination be dismissed.⁵

II. Plaintiff's Objection to the R & R's Severe and Pervasive Hostile Environment Analysis

Plaintiff also objects to the R & R's recommendation that her hostile work environment claims under § 1981, Title VII, and the ADA be dismissed. However, Plaintiff's objection merely restates facts alleging that a hostile work environment existed and notes the standard for deciding hostile work environment claims under § 1981. (See Pl.'s Objs. at 14.) "General or conclusory objections, or objections which merely recite the same arguments presented to the magistrate judge, are reviewed for clear error." O'Diah v. Mawhir , No. 08-CV-322 (TJM) (DRH), 2011 WL 933846, at *1 (N.D.N.Y. March 16, 2011) ; Frankel , 2009 WL 465645, at...