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holding that, because "Santos does not . . . allege that her interactions with [her supervisor] created her condition[, but instead] . . . maintains that her impairment existed before working with Rosa and that her 'medical situation was aggravated by the actions of Ms. Rosa' . . . the impairment arguably restricts her 'ability to perform . . . a broad range of jobs'"
Summary of this case from Kriss v. Schenectady City School DistrictOpinion
01 Civ. 0120 (SAS)
December 7, 2001
Sylvia Santos Bronx, New York Plaintiff (Pro se).
Ricardo Elias Morales, Esq. Lanny R. Alexander, Esq. New York, New York. For Defendants.
OPINION AND ORDER
Sylvia Santos, proceeding pro se, has sued her former employer, New York City Housing Authority ("NYCHA" or "Housing Authority"), alleging the following violations of the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 1201 et seq.: (1) unequal terms and conditions of employment; (2) failure to accommodate her disability; and (3) retaliation The NYCHA, Barbara Rosa, Deborah Amore, Charles Sabatino, Donald Tilner, and Jane Doheny (collectively, "defendants") now move to dismiss the first claim for failure to state a claim upon which relief can be granted. They also move to dismiss the second and third claims for lack of subject matter jurisdiction or, alternatively, for failure to state a claim upon which relief can be granted. For the reasons below, defendants' motion is granted in part and denied in part.
The Second Circuit has affirmed a district court opinion holding that individual defendants may not be held personally liable for alleged violations of the ADA. See Corr v. MTA Long Island Bus, 27 F. Supp.2d 359, 370 (E.D.N.Y. 1998), aff'd, 199 F.3d 1321 (2d Cir. 1999). Accordingly, defendants Rosa, Amore, Sabatino, Tilner and Doheny are dismissed from this lawsuit. Additionally, although the City of New York is named as a defendant, there is no proof that it was ever served and it is therefore not a party to this action.
I. FACTS
Santos began working as a secretary for the Housing Authority in 1993 and resigned in December 2000. See Addendum to Complaint ("Addend.") 2; 12/1/00 NYCHA Resignation Letter, Ex. F to Lanny R. Alexander's, NYCHA attorney, Declaration in Support of Defendants' Motion to Dismiss ("Alexander Decl."). Santos claims that she suffered from "a stress and anxiety disorder and a persistent intestinal infection which cause[d] [her] to use vacation days or [her] sick leave to recover." See Addend. 1. Nonetheless, Santos maintains that she could have performed the essential functions of her job. See id.
Because plaintiff is proceeding pro se, the factual allegations raised in Plaintiff's Addendum to her Complaint and Plaintiff's Affidavit will be treated as part of her Complaint. See Gill v. Mooney, 824 P.2d 192, 195 (2d Cir. 1987) (considering pro se plaintiff's affidavit in reviewing district court's dismissal of claim); Donahue v. United States Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990) ("The policy reasons favoring liberal construction of pro se pleadings warrant the Court's consideration of the allegations contained in plaintiffs' memorandum of law, at least where those allegations are consistent with the complaint.").
On August 19, 1999, Santos became ill and her doctor notified the Housing Authority that Santos required two weeks medical leave due to her stress and anxiety disorder. See id. 4. On September 9, 1999, Santos submitted another note from her doctor indicating that she required an additional two weeks leave for treatment of an intestinal infection. See id. Santos's supervisor, Barbara Rosa, reported her absent without leave from September 10 through September 27, 1999, thereby preventing Santos from using her earned annual leave to cover her absence. See id. 5.
Since becoming ill, Santos claims she has been "subjected to countless actions by Ms. Rosa." Id. 6. These actions include: excessive disciplinary memos, loss of pay, questions regarding Santos's alleged drug and alcohol addiction, infliction of emotional distress, threats of termination, and intentional delays in providing short-term disability benefits. See id. As a result of these actions, Santos claims that she worked in fear of future retalitory action against her and as a result "experience[d] frequent attacks and continue[d] to suffer from multiple illness [sic] of unexplained hair loss, sleeplessness, stomach problems and lack [of] concentration." Id. 7.
While Santos uses the term "short-term disability benefits" in her Complaint, her grievance appears to be the denial of medical leave. See infra Part IV.B.
Santos filed a complaint against the Housing Authority with the New York State Division on Human Rights ("SDHR") on September 30, 1999, charging defendants "with an unlawful discriminatory practice by denying [Santos] equal terms, conditions, and privileges of employment on the basis of [her] disability." See 9/30/99 SDHR Complaint ("SDHR Compl."), Ex. D to Alexander Decl. 6. At Santos's request, the SDHR dual-filed her complaint with the Equal Employment Opportunity Commission ("EEOC") charging that the alleged conduct by the Housing Authority violated the ADA.
After an investigation, the SDHR dismissed the complaint on the ground that there was "NO PROBABLE CAUSE to believe that (NYCHA] has engaged or is engaging in the unlawful discriminatory practice complained of." 6/29/00 SDHR Determination and Order After Investigation, Ex. E to Alexander Decl., at 1 (capitals in original). After receiving a right-to-sue letter from the EEOC on August 10, 2000, Santos filed this action on November 2, 2000.
II. JURISDICTION UNDER THE ADA
A district court may decide claims for employment discrimination under the ADA only after a plaintiff has exhausted her administrative remedies. Cf. Butts v. City of New York Dep't of Housing, 990 F.2d 1397, 1401 (2d Cir. 1993) (discussing the filing requirements for Title VII claim); see Nweke v. Prudential Ins. Co. of Am., 25 F. Supp.2d 203, 214 (S.D.N.Y. 1998) (finding that the ADA has substantially the same subject matter jurisdiction requirements as Title VII). Thus, under the ADA, as under Title VII, a plaintiff must file a charge of discrimination with the EEOC prior to commencing an action for employment discrimination in federal court. See Garcia v. Coca-Cola Bottling Co. of N.Y., No. 96 Civ. 6072, 1998 WL 151032, at *2 (S.D.N.Y. Mar. 31, 1998). Failure to exhaust administrative remedies denies the parties, as well as the agency, the opportunity to settle discrimination disputes "through conciliation and voluntary compliance." Butts, 990 F.2d at 1401. Defendants contend that because Santos never presented her failure to accommodate and retaliation claims to an administrative agency, they are not properly before this Court and must be dismissed. See Defendants' Memorandum of Law in Support of Motion to Dismiss the Complaint ("Def. Mem.") at 5.
In Butts, the Second Circuit described three situations where claims not alleged in an EEOC charge are sufficiently related to the allegations in the charge such that it would be unfair to civil rights plaintiffs to bar such claims in a civil action. The first type of "reasonably related" claim is "essentially an allowance of loose pleading." Butts, 990 F.2d at 1402. Recognizing that charges are frequently filed pro se, reasonably related claims are permitted if the "conduct complained of would fall within the "scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination."' Id. (quotingSmith v. Am. President Lines. Ltd., 571 F.2d 102, 108 n. 10 (2d Cir. 1978)). The second type is a claim alleging retaliation by an employer against an employee for filing an EEOC charge. See Butts, 990 F.2d at 1402. The third type is where a plaintiff alleges further incidents of discrimination carried out in the same manner as those alleged in the EEOC charge. See id. at 1402-03.
The SDHR complaint filed by Santos focused exclusively on defendants' alleged discrimination in denying Santos her disability benefits. See SDHR Compl. 6, Ex. E attached to Defendants' Notice of Motion to Dismiss the Complaint ("I have a stress and anxiety disorder and intestinal infection. Based on the foregoing, I charge the [NYCHA] with an unlawful discriminatory practice by denying me equal terms, conditions, and privileges of employment on the basis of my disability."). Although Santos does not specifically refer to the defendants' failure to accommodate her disability in her SDHR complaint, such an allegation is "reasonably related" to her SDHR claim. Various courts have held that a leave of absence may qualify as a reasonable accommodation in certain situations.See Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir. 1998) (holding that a leave of absence and leave extensions are reasonable accommodations in some circumstances); Powers v. Polygram, 40 F. Supp.2d 195, 201-02 (S.D.N.Y. 1999) (finding that requested leaves of absence are reasonable accommodations under normal circumstances). Although not explicitly set forth in the SDHR complaint, Santos appears to allege that defendants failed to accommodate her disability by denying her disability benefits, including use of her earned annual leave time. Therefore, an SDHR investigation into the circumstances surrounding the denial of disability benefits necessarily encompasses an alleged failure to accommodate Santos's disability by not granting her requested medical leave. Accordingly, this Court has jurisdiction to hear Santos's failure to accommodate claim.
Additionally, although Santos failed to bring her claim of retaliation to the SDHR or the EEOC, federal courts have jurisdiction over claims ""alleging retaliation by an employer against an employee for filing' the underlying claim of discrimination." Shah v. New York State Dep't of Civil Serv., 168 F.3d 610, 614 (2d Cir. 1999) (quoting Butts, 990 F.2d at 1402). Accordingly, because the claims of retaliation and failure to accommodate both involved discrimination based upon Santos's disability and because they are "reasonably related" to the SDHR complaint, this Court has jurisdiction over these claims.
III. LEGAL STANDARD
Dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) is proper only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim that would entitle him to relief." Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999) . The test is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. See Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998). The factual allegations in the complaint are presumed to be true, and all reasonable inferences are drawn in the plaintiff's favor. See EEOC v. Staten Island Sav. Bank, 207 F.3d 144 (2d Cir. 2000). Where a plaintiff proceeds pro se, a court must construe the complaint liberally and "interpret [it] to raise the strongest arguments that [it] suggest[s]." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). Nevertheless, "[t]o survive a motion to dismiss, [plaintiff's] claims must be "supported by specific and detailed factual allegations' not stated "in wholly conclusory terms."' Friedl v. City of New York, 210 F.3d 79, 85-86 (2d Cir. 2000) (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983))
In deciding a Rule 12(b)(6) motion, a court may examine facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference. See Yak v. Bank Brussels Lambert, 252 F.3d 127, 130 (2d Cir. 2001). When documents are attached as exhibits to the complaint, a court may review such documents if they are deemed integral to plaintiff's claims. See Schnall v. Marine Midland Bank, 225 F.3d 263, 266 (2d Cir. 2000); see also Connecticut Indem. Co. v. 21st Century Transport Co.. Inc., No. 99 Civ. 7735, 2001 WL 868340, at *3 (E.D.N.Y. July 27, 2001).
IV. DISCUSSION
The ADA prohibits covered employers from discriminating:
against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.42 U.S.C. § 12112 (a). Under the ADA, a plaintiff raising an employment discrimination claim bears the initial burden of establishing a prima facie case and must show:
(1) her employer is subject to the ADA; (2) she suffers from a disability within the meaning of the ADA; (3) she could perform the essential functions of her job with or without a reasonable accommodation; and (4) she was [discriminated against] because of her disability.Ryan v. Grae Rybicki. P.C., 135 F.3d 867, 869-70 (2d Cir. 1998); see also Usala v. Consolidated Edison Co. of New York, 141 F. Supp.2d 373, 380 (S.D.N.Y. 2001). Defendants contend that the Complaint should be dismissed because Santos's stress and anxiety disorder is not an ADA qualifying "disability". Alternatively, defendants argue that Santos has failed to state a claim upon which relief can be granted.
A. ADA-Qualifying Disability
The ADA describes an individual as suffering from a "disability" if she makes a showing of any one of the following: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102 (2). Santos does not allege, nor can it be inferred from the pleadings, that she has a record of disability or that she was regarded as disabled by defendants. Accordingly, Santos must plead that she has "a physical or mental impairment that substantially limits one or more major life activities" as required by 42 U.S.C. § 12102 (2)(A)
In evaluating whether an individual has such an ADA qualifying disability, the Second Circuit uses the three-step approach taken by the Supreme Court in Bragdon v. Abbott, 524 U.S. 624 (1998). See Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 641 (2d Cir. 1998) . First, plaintiff must show that she suffers from a physical or mental impairment. See id. (citing Bragdon, 524 U.S. at 631). Second, plaintiff must identify the activity claimed to be impaired and establish that it constitutes a "major life activity." See id. Third, the plaintiff must show that her impairment "substantially limits" the major life activity previously identified. See id. If a plaintiff fails to satisfy any of these three prongs, her discrimination claim must be dismissed. See Felix v. New York City Transit Auth., 154 F. Supp.2d 640, 653 (S.D.N.Y. 2001).
1.Impairment
Santos claims to suffer from a stress and anxiety disorder and an intestinal infection. See Addend. 1. The EEOC regulations issued in conjunction with the ADA define a "mental impairment" as "any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities." 29 C.F.R. § 1630.2 (h)(2). A court must "accord great deference to the EEOC's interpretation of the ADA, since it is charged with administering the statute." Francis v. City of Meriden, 129 F.3d 281, 283 n.l (2d Cir. 1997). The EEOC's Technical Assistance Manual on the ADA explains that "stress and depression are conditions that may or may not be considered impairments, depending on whether these conditions result from a documented physiological or mental disorder." EEOC Technical Assistance Manual on the Employment Provisions (Title I) of the Americans With Disabilities Act § 2.1(a)(i), at II-3 (1992); see also McAlindin v. County of San Diego, 192 F.3d 1226, 1233 (9th Cir. 1999) (accepting plaintiff's claim that anxiety disorder qualified as an "impairment" under the ADA).
Santos continuously mentions her intestinal infection together with her stress and anxiety disorder. However, Santos has not alleged any conditions or limitations caused by her intestinal infection other than taking time off from work on one occasion for treatment. Thus, her stress and anxiety disorder is the only relevant impairment.
Defendants argue that "plaintiff's alleged disability is not an impairment within the meaning of the ADA." Def. Mem. at 6. Defendants then cite cases examining whether a particular "impairment" rises to the level of a "disability". Thus, defendants appear to concede that a stress and anxiety disorder may qualify as an "impairment" under the ADA. Defendants argue, however, that "a stress-related disorder created and exacerbated by [Santos's] interactions with her supervisor, defendant Rosa" does not constitute a "disability" within the meaning of the ADA.Id. at 7.
Santos characterizes her condition as more than merely stress resulting from her present job. Santos maintains that her "medical condition existed prior to arriving at Elliot-Chelsea Houses" and that her "medical condition was aggravated by the actions of Ms. Rosa." 10/16/01 Santos Affidavit 2 ("P1. Aff.") (emphasis added). Accordingly, for present purposes, this Court must accept Santos's allegation that her stress and anxiety disorder is a medical condition that may qualify as an impairment under the ADA.
2. Substantially Limits a Major Life Activity
The ADA does not define "substantially limits" or "major life activities," but the EEOC regulations provide significant guidance. See Ryan, 135 F.3d at 870. In general, "major life activities" include "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working." 29 C.F.R. § 1630.2 (i). Although Santos does not expressly articulate which major life activities are affected by her impairments, her Complaint alleges that as a result of her stress and anxiety disorder she must take time off from work to recover. See Addend. 1. Thus, it is reasonable to conclude that Santos has pled a limitation on her ability to work.
In Sutton v. United Airlines. Inc., 527 U.S. 471, 491-93(1999), the Supreme Court expressed some concern over whether "working" should be considered a "major life activity" under the ADA and noted that limitations on "working" should only be considered if a plaintiff is limited in no other "major life activities".
To prove that an impairment substantially limits the major life activity of working, a plaintiff must show that she is "significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2 (j) (3)(i) . "The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working." Id.; accord Sutton, 527 U.S. at 491.
Defendants argue that because Santos's interactions with Rosa, her supervisor, created the stress and anxiety disorder, Santos is only limited in her ability to perform this one particular job and therefore is not substantially limited in her ability to work. Santos does not, however, allege that her interactions with Rosa created her condition. She maintains that her impairment existed before working with Rosa and that her "medical situation was aggravated by the actions of Ms. Rosa." Pl. Aff. 2 (emphasis added). In light of the fact that Santos's stress and anxiety disorder necessitated taking time off to recover and was not caused exclusively by her job with the Housing Authority, the impairment arguably restricts her "ability to perform . . . a broad range of jobs." 29 C.F.R. § 1630.2 (j)(3)(i). Thus, at this preliminary stage, Santos's allegations are sufficient to establish that she is disabled within the meaning of the ADA.
B. Failure to Accommodate
To state a claim for discrimination based upon an employer's failure to accommodate, Santos must allege facts showing: (1) she is an individual with a disability; (2) that an employer covered by the ADA had notice of her disability; (3) that, with reasonable accommodation, she could perform the essential functions of the position; and (4) that the employer refused to make such accommodations. See Kendricks v. Westhab, Inc., No. 98 Civ. 158, 2001 WL 1149026, at *6 (S.D.N.Y. Sept. 28, 2001) (citingLyons v. Legal Aid Soc., 68 F.3d 1512, 1515-1516 (2d Cir. 1995))
While not explicitly pled in the Complaint, Santos appears to allege that defendants failed to accommodate her disability by denying her request for a medical leave of absence. See Addend. 5. Defendants do not dispute that such a request arguably falls within the ADA's definition of "reasonable accommodation". Instead, they contend that Santos's failure to accommodate claim must be dismissed because "NYCHA has not denied any of plaintiff's documented requests for extended leaves of absence." Def. Mem. at 9. In support, defendants refer to a letter from the NYCHA Human Resources Department which indicates that although Santos's request for a leave of absence was initially denied, the NYCHA approved the request two months later. Nonetheless, because the Complaint contains allegations of both denial and delay in response to Santos's requests for medical leave, her failure to accommodate claim is not subject to resolution on a motion to dismiss.
The ADA specifically provides that modified work schedules and part-time employment are broad types of reasonable accommodations which an employer may be required to provide. See 42 U.S.C. § 12111 (9)(B);see also Criado, 145 F.3d at 443 (holding that a leave of absence and leave extensions are reasonable accommodations in some circumstances);Powers, 40 F. Supp. 2d at 201-02 (finding that requested leaves of absence are reasonable accommodations under normal circumstances).
Santos also brings a claim of discrimination based upon the defendants' denial of equal terms, conditions, and privileges of employment — in particular, that they denied or delayed receipt of her disability benefits. Although couched in different language, these allegations constitute part of Santos's failure to accommodate claim because both claims ultimately turn on Santos's request for medical leave. Therefore, only the failure to accommodate claim need be addressed.
C. Retaliation
To state a claim for retaliation under the ADA a plaintiff must show: "(1) [s]he was engaged in protected activity; (2) the employer was aware of the activity; (3) the employee suffered an adverse employment action; and (4) that there was a causal connection between the protected activity and the adverse employment action." Irvine v. Video Monitoring Servs. of Am., L.P., No. 98 Civ. 8725, 2000 WL 502863, at *6 (S.D.N.Y. Apr. 27, 2000 )( citing Galdieri-Ambrosini v. National Realty Dev. Corp., 136 F.3d 276, 291-92 (2d Cir. 1998)).Santos has done nothing more than check off the retaliation box on the pro se form complaint. She does not allege what protected activity she engaged in or what adverse employment action she suffered as a result. The only protected activity Santos appears to have engaged in occurred when she filed a complaint with the SDHR. However, Santos has failed to allege that defendants have taken any actions in response to the filing of that complaint. While Santos does complain of discriminatory actions taken by Rosa, she explains only that Rosa took those actions against her "since becoming ill, " and not in conjunction with her filing the SDHR complaint. See Addend. 6. Thus, because Santos has failed to establish the requisite causal connection required to state a prima facie claim of retaliation, Santos's retaliation claim must be dismissed.
V. CONCLUSION
For the reasons discussed above, defendants' motion to dismiss Santos's failure to accommodate claim for lack of subject matter jurisdiction or, alternatively, for failure to state a claim upon which relief can be granted is denied. Despite the fact that the Court has subject matter jurisdiction over Santos's retaliation claim, defendants' motion to dismiss this claim is granted because Santos has failed to state a claim upon which relief can be granted. A conference will be held on December 20, 2001 at 2:30.
For the reasons stated supra note 8, I do not address defendants' motion with respect to Santos's claim of unequal terms and conditions of employment.