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holding that the plaintiff, who broke her ankle resulting in a single, twelve-week disability leave with no alleged physical limitations thereafter, was not disabled within the meaning of the ADA or "the parallel New York statute"
Summary of this case from Pitter v. Target Corp.Opinion
No.08-CV-6571L.
May 28, 2009.
Seamus M. Tuohey, Victor, NY, for Plaintiff.
Jennifer A. Mereau, Underberg Kessler LLP, Rochester, NY, Ken C. Gauvey, Offit Kurman, Maple Lawn, MD, for Defendant.
DECISION AND ORDER
Plaintiff, a former employee of Upstate National Bank (the "Bank"), brings this action alleging that the Bank subjected her to a demotion equivalent to a constructive discharge, in violation of the Americans with Disabilities Act of 1990 ( 42 U.S.C. § 12112 et seq.) ("ADA"), the New York Human Rights Law (N.Y. Exec. Law § 290 et seq.), and New York common law.
The Bank has moved to dismiss plaintiff's claims in their entirety pursuant to Fed.R.Civ.Proc. 12(c) (Dkt. #2), on the grounds that the plaintiff has failed to state a claim. For the reasons set forth below, that motion is granted.
DISCUSSION
Initially, the Court notes that the defendant's motion is unopposed. Although plaintiff was afforded several weeks to respond, which time was subsequently extended at the request of plaintiff's counsel until May 4, 2009 (Dkt. #4), the plaintiff has not filed any opposition to the motion.While the plaintiff's failure to oppose the motion to dismiss may be telling, it is not, by itself, fatal to the plaintiff's case. "If a complaint is sufficient to state a claim on which relief can be granted, the plaintiff's failure to respond to a Rule 12(b)(6) motion does not warrant dismissal." McCall v. Pataki, 232 F.3d 321, 322 (2d Cir. 2000). Thus, "accept[ing] the allegations contained in the complaint as true, and draw[ing] all reasonable inferences in favor of the non-movant," as it must in deciding a Rule 12(b)(6) motion, the Court addresses the Bank's motion to dismiss on the merits. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994), citing Ad-Hoc Comm. of Baruch Black Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987). In so doing, the Court applies the now-familiar Twombly standard, which holds that "a plaintiff's obligation . . . requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). See e.g., Ashcroft v. Dept. of Corrections, 2007 U.S. Dist. LEXIS 49079 (W.D.N.Y. 2007) (discussing and applying the Twombly standard).
I. The Bank's Motion to Dismiss
Plaintiff's complaint (Dkt. #1) alleges that plaintiff, initially hired by the Bank as a Manager Trainee and later promoted to Branch Manager for the Bank's Brighton branch, became temporarily disabled from employment on September 10, 2006 after breaking her right ankle. Plaintiff took a disability leave of absence until she was cleared by her physician to return to work, on or about December 4, 2006. Upon plaintiff's return, the Bank informed her that a new Branch Manager had been hired during her absence, and proposed that she accept an open teller position, with a 20% reduction in pay. Plaintiff refused the teller position, and resigned.
Plaintiff thereafter filed a timely administrative charge with the New York State Division of Human Right ("NYSDHR") alleging discrimination on the basis of disability. After investigation, the NYSDHR found probable cause to believe that the Bank had unlawfully discriminated against plaintiff. Although the EEOC denied a request by the Bank to vacate the probable cause finding and scheduled the matter for a hearing, plaintiff requested dismissal of the charge on the grounds of administrative convenience so that she could pursue her remedies in this Court. That request was granted.
Plaintiff's complaint alleges the following causes of action: (1) intentional discrimination on the basis of disability, effecting a constructive discharge in violation of the ADA; (2) intentional discrimination on the basis of disability, in violation of the New York Human Rights Law; (3) tortious interference with prospective economic advantage; and (4) breach of the implied covenant of good faith and fair dealing.
A. Discrimination in violation of the ADA and NY Human Rights Law
B. Tortious interference with Prospective Economic Advantage
Toyota Motor Mfg., Ky., Inc. v. Williams534 U.S. 184 198122 S.Ct. 681151 L.Ed.2d 615 See Jackson v. Nor Loch Manor HCF Adams v. Citizens Advice Bureau187 F.3d 315316-317Colwell v. Suffolk County Police Dep't 158 F.3d 635646See generally Camarillo v. Carrols Corp.518 F.3d 153158 Kirch v. Liberty Media Corp. 449 F.3d 388 400 its own business relationship with plaintiff. See GE Capital Corp. v. D'Agostino Supermarkets, Inc. 2005 U.S. Dist. LEXIS 14446
The Court notes the recent enactment of the ADA Amendments Act ("ADA AA"), which has partially superseded Toyota Motor Mfg., Ky., Inc. and other Supreme Court precedent by broadening the definition of "disability," and enlarging the scope of protection available under the ADA. See ADA Amendments Act of 2008, Pub.L. 110-325, 122 Stat. 3553 (2008). However, the amendments, which took effect January 1, 2009, do not apply retroactively, and thus do not affect the Court's analysis here. See, e.g., Moran v. Premier Educ. Group, LP, 599 F. Supp.2d 263, 271-272 (D. Conn. 2009) (collecting cases); Gibbon v. City of New York, 2008 U.S. Dist. LEXIS 106671 at *16 n. 47 (S.D.N.Y. 2008).
C. Breach of the implied covenant of good faith and fair dealing
The plaintiff does not allege the existence of any contractual relationship with the Bank relative to her employment. "[A]bsent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party" under New York law. Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 333 (1987). Because New York recognizes no covenant of good faith and fair dealing in an at-will employment relationship, that claim must be dismissed. See Chimarev v. TD Waterhouse Investor Servs., 99 Fed. Appx. 259, 262 (2d Cir. 2004), citing Horn v. New York Times, 100 N.Y.2d 85, 96-97 (2003); Benoit v. Commercial Capital Corp., 2008 U.S. Dist. LEXIS 64905 at *31 (S.D.N.Y. 2008).
CONCLUSION
For the foregoing reasons, defendant's motion to dismiss (Dkt. #2) is granted, and the plaintiff's complaint is dismissed in its entirety, with prejudice.
IT IS SO ORDERED.