Thomson v. Odyssey House
| Decision Date | 21 September 2015 |
| Docket Number | 14-CV-3857 (MKB) |
| Parties | GEORGINA C. THOMSON and SHEILA CLARK, Plaintiffs, v. ODYSSEY HOUSE, VANCE HERBERT, DARRIN BROWN, GAIL HARRISON and JOHN DOES 1-10, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiffs Georgina Thomson and Sheila Clark commenced the above-captioned action in the New York State Supreme Court, Kings County, in September of 2013, against Defendants Odyssey House, Vance Herbert, Darrin Brown, Gail Harrison1 and John Does 1-10, alleging claims of discrimination, retaliation and hostile work environment on the basis of race, gender, sexual orientation and disability in violation of the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYSHRL") and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. ("NYCHRL"), and a claim for negligent infliction of emotional distress. On or about May 30, 2014, Plaintiffs amended their state court complaint to include federal claims pursuant to 42 U.S.C. § 1981. On June 20, 2014, Defendant Odyssey House removed the action to this Court. (Not. of Removal, Docket Entry No. 1.) Plaintiffs subsequently amended the complaint twice, adding claims for discrimination, retaliation andhostile work environment brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Americans with Disabilities Act ("ADA"). Specifically, Thomson brings claims of discrimination under the ADA, Title VII, NYSHRL and NYCHRL, retaliation under Title VII, the ADA, Section 1981, NYSHRL and NYCHRL, and hostile work environment under Title VII, NYSHRL and NYCHRL. Clark brings claims of discrimination and hostile work environment under the NYSHRL, and retaliation under Section 1981 and the NYSHRL.
Odyssey House moves to dismiss the Third Amended Complaint ("TAC") pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, arguing that Plaintiffs' NYSHRL and NYCHRL claims that were presented to the New York State Division of Human Rights ("NYSDHR") are barred by the election of remedies provisions in those statutes, and that Plaintiffs otherwise fail to state a claim against Odyssey House.2 (Mot. to Dismiss, Docket Entry No. 29; Def. Mem. in Support of Mot. to Dismiss ("Def. Mem."), Docket Entry No. 30.) For the reasons set forth below, the Court grants Odyssey House's motion to dismiss both Plaintiffs' NYSHRL claims and Thomson's Title VII, ADA, Section 1981 and NYCHRL claims, and denies Odyssey House's motion to dismiss Clark's Section 1981 claim. Plaintiffs' Title VII, ADA, NYSHRL and NYCHRL claims against Brown, Harris and Herbert ("Individual Defendants") are dismissed sua sponte. The Court orders Plaintiffs to show cause within thirty days of the date of this Memorandum and Order why Individual Defendants should not be dismissed from this action because of Plaintiffs' failure to serve them.
Odyssey House is a New York corporation whose business involves providing counseling to inmates in prison. (See TAC ¶¶ 4, 6, 8, 33, 57.) The Individual Defendants were employees of Odyssey House. (TAC ¶ 10.) Herbert worked with Plaintiffs, and Harris was Plaintiff Thomson's supervisor. (TAC ¶ 15.) Brown appears to have been in a position senior to both Plaintiffs, such that Plaintiffs addressed complaints about their working conditions to him. (TAC ¶¶ 21-26, 33-34, 56.)
Plaintiff Georgina Thomson was employed by Defendant Odyssey House from July of 2010 through April of 2014. (TAC ¶¶ 2, 11, 41.) Thomson served as an Intake Discharge Coordinator and counseled clients on behalf of Odyssey House. (TAC ¶¶ 4, 12.) Plaintiffs allege that Thomson was an "exemplary employee" and did not disobey orders or directives from supervisors. (TAC ¶ 13.)
Thomson is a lesbian and is open about her sexuality with her coworkers, which has "attracted a barrage of insults and 'jokes' from co-workers and supervisors alike," including the Individual Defendants. (TAC ¶¶ 14-15.) Defendant Brown asked Thomson on various occasions why she wore a blouse instead of a tie, which Thomson understood to be a remark about her sexuality, and on two occasions told her to wear her hair down to "look prettier." (TAC ¶ 24.) On "more than one occasion," someone3 answered the telephone when Thomson's wife called and thereafter told Thomson that "her wife wanted to be with a real man." (TAC¶ 26.) On or about June 12, 2011, Harris "made inappropriate comments" about an administrative assistant, and told Thomson to "stop flirting with" the assistant. (TAC ¶ 17.) On or about the same day, Harris also told Thomson "not to pick up" the assistant. (Id.) Plaintiffs allege that Thomson complained — though she does not specify to whom or about what — and was "marked for closer supervision by management." (TAC ¶ 18.) On or about August 4, 2011, Harris "complained" to an unspecified person about Thomson's work but not that of heterosexual employees, non-black employees, or "employers [sic] that had [not] complained about discrimination." (Id.)
On August 2, 2011, Thomson informed Harris that Thomson's wife's nephew had been killed and that Thomson wanted to attend the funeral. (TAC ¶ 35.) Harris denied Thomson leave, despite the fact that heterosexual employees had been, in the past, given leave to attend funerals. (TAC ¶¶ 35-36.) Brown told Thomson he had only wanted to hire men because women "are too emotional." (TAC ¶ 25.)
At some unspecified time, Thomson requested to work overtime and was denied the opportunity, although the same opportunity was offered to men. (TAC ¶ 19.)
On August 5, 2011, Thomson asked Harris if she could "do a Treatment Plan,"4 and was "laughed at" and "told that she was not like Herbert," a man, and that it "would take her 10 days to complete it," humiliating Thomson in front of her colleagues. (TAC ¶ 20.) Plaintiffs allege that this "happened often," and, on August 9, 2011, Harris again embarrassed Thomson in front of her coworkers. (Id.)
On August 23, 2011, Thomson complained in writing "detailing prior complaints andnew issues that had arisen," reminding her employers that she had complained about Harris's conduct since November 2010. (TAC ¶¶ 15-16.) Plaintiffs do not indicate to whom these complaints were made or give more detail about the contents of the complaints. At some point in time, Thomson also complained to Brown and Human Resources about Harris's racially-charged remarks to Clark. (TAC ¶¶ 29-31.) In a meeting held at an unspecified time as a result of Thomson's "letter on August 24, 2011,"5 Thomson further complained that no action had been taken against Harris despite Thomson's repeated complaints. (TAC ¶ 22.) Defendant Brown, also present at the meeting, made excuses for Harris's conduct. (Id.) On August 29, 2011, Thomson wrote to Brown to complain about Harris's prior conduct and explained that she feared her job was in jeopardy. (TAC ¶ 21.) Brown did not take this or other complaints "seriously." (TAC ¶¶ 24, 26.)
At an unspecified time prior to July 26, 2011, Thomson had surgery on her breasts and was instructed not to work in a humid environment. (TAC ¶ 32.) Harris insisted that Thomson return to work on July 26, 2011 and that she worked in "the prison classrooms," which are humid. (TAC ¶ 33.) This caused inflammation and discomfort. (TAC ¶ 34.) Brown told her that if she was unable to "work in the heat, despite her doctor's orders, he had no use for her." (TAC ¶¶ 23, 34.)
Herbert frequently moved Thomson's chair out of the way or lowered the chair so that she would fall when she attempted to sit in it. (TAC ¶¶ 27-28.) On or about September 9, 2011, Thomson had another surgery, and returned to work on September 14, 2011. (TAC ¶¶ 37-38.)That day, Herbert moved Thomson's chair out from under her, causing Thomson to fall and reinjure her surgery site, necessitating several weeks of leave.6 (TAC ¶¶ 39-40.)
On March 5, 2012, Thomson, proceeding pro se, filed a complaint against Defendants with the NYSDHR,7 alleging retaliation and discrimination on the basis of creed, disability,marital status, race or color,8 sex and sexual orientation, and of sexual harassment and other harassment in violation of the NYSHRL, Title VII and the ADA. (Compl. dated 3/5/2012 in Case No. 10153677 ("Thomson March 5, 2012 NYSDHR Compl.") at ECF No. 21, 24-25, annexed to Aff. of Wendy J. Mellk in Support of Def. Mot. to Dismiss ("Mellk Aff.") as Ex. B.) In her narrative, Thomson alleges substantially the same facts as described above. (See id. at ECF No. 28-34.) Thomson's March 5, 2012 NYSDHR complaint was forwarded to the EEOC. (Id. at ECF No. 21.) On August 31, 2012, the NYSDHR issued a determination that there was no probable cause to believe Defendants engaged in the unlawful discriminatory practices of which Thomson complained. (Determination and Order in Case No. 10153677, annexed to Mellk Aff. as Ex. D.) On January 29, 2013, the EEOC adopted these findings and informedThomson of her right to sue. (EEOC Dismissal and Notice of Rights for Georgina C. Thomson dated January 29, 2013 ("January 29, 2013 Right to Sue Notice"), annexed to Mellk Aff. as Ex. F.)
Thomson, who had not been working at Odyssey House for an unidentified period of time possibly stretching back to her injury in September of 2011, "noted interest" in returning to work, but Defendants refused to let her return and "let her go" in April of 2014 (the "April 2014 termination").9 (TAC ¶ 41.)
On July 2, 2014, Thomson filed a charge of discrimination with the EEOC, alleging that Odyssey House discriminated against her on the basis of her race, sex, national origin and disability in violation of Title VII and the ADA, and retaliated against her for her complaints about...
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