Opinion
13 Civ. 8073 (AT)(MHD)
12-30-2014
MOJGAN SOBHI, Plaintiff, v. SOCIEDAD TEXTIL LONIA CORP. D/B/A CH CAROLINA HERRERA, LTD., Defendant.
MEMORANDUM AND ORDER :
In this action, Plaintiff, Mojgan Sobhi, alleges that Defendant, Sociedad Textil Lonia Corp. d/b/a CH Carolina Herrera, Ltd., engaged in unlawful employment practices in violation of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12117(a) (the "ADA"), the New York State Human Rights Law, N.Y. Exec. Law § 296 (the "NYSHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 (the "NYCHRL"). Defendant moves to dismiss the amended complaint (the "complaint") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the following reasons, Defendant's motion is DENIED.
BACKGROUND
The following facts are taken from the complaint and accepted as true for the purposes of this motion. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007).
On August 16, 2010, Plaintiff began her employment with Defendant as a retail sales associate at Defendant's store located on Madison Avenue in New York City. Am. Compl. ¶ 11, ECF No. 9. On January 14, 2011, Plaintiff was diagnosed as having active fibroid tumors. Id. ¶ 12. Plaintiff's condition "physically impaired and substantially limited the operation of her major bodily functions of normal cell growth and reproductive functions." Id. ¶ 13. Plaintiff's doctor advised her that the tumors should be surgically removed and that following the surgery she would require six to eight weeks to recover. Id. ¶¶ 14, 16. Plaintiff scheduled the surgery for February 28, 2011. Id. ¶ 15.
On January 14, 2011, Plaintiff advised Defendant that she needed to have surgery and requested eight weeks off from work in order to undergo the surgery and recover from it. Id. ¶¶ 17, 23. On January 21, 2011, Plaintiff provided Defendant with a letter from her doctor stating that her surgery was scheduled for February 28, 2011 and that her estimated recovery time was six to eight weeks. Id. ¶ 18. On January 24, 2011, Plaintiff provided Defendant with another letter from her doctor, advising that the surgery was postponed until March 1, 2011. Id. ¶ 19. Defendant approved Plaintiff's requested time off. Id. ¶ 20.
On February 11, 2011, Plaintiff sent an e-mail to Defendant's president, Caroline Brown, advising her of the eight week leave for surgery and recovery, which had already been approved, and expressing concern about comments regarding Plaintiff's job performance made by Fabiola Velarde, Defendant's USA Director of the Retail Department. Id. ¶ 21. On February 11, 2011, Brown sent Plaintiff an e-mail which stated, "Dear Morgan, I hope you are ok regarding your surgery. I have noted your comments. Thanks for the input and please focus on taking care of your health right now so you get better." Id. ¶ 22.
Plaintiff advised Defendant that the surgery was rescheduled to March 5, 2011. Id. ¶ 24. On March 1, 2011, Plaintiff sent an e-mail to Velarde asking whether Defendant wanted her to work on March 2-4, 2011. Id. ¶ 25. Plaintiff had not received a response by the following morning. On March 2, 2011, Plaintiff sent another e-mail to Velarde asking whether Defendant wanted Plaintiff to work. Id. ¶ 26. Velarde responded that Defendant regarded Plaintiff as being on "sick leave as of March 1st, 2011." Id. ¶ 27.
The surgery was performed on March 5, 2011. Id. ¶ 28. As a result, Plaintiff "experienced pain, including, but not limited to significant pain in her lower abdomen, weakness, fatigue, dizziness, and hemorrhaging, which significantly limited Plaintiff's hemic, circulatory, musculoskeletal, and reproductive systems." Id. ¶ 29. During the recovery period from approximately March 5 to April 17, 2011, Plaintiff "was substantially limited in her abilities as they related to caring for herself, performing manual tasks, walking, standing, lifting, bending, and working." Id. ¶ 30.
On April 5, 2011, Plaintiff informed Defendant that, although there had been some complications with her recovery, Plaintiff anticipated that, pursuant to her doctor's advisement, Plaintiff could return to work after April 17, 2011, approximately six weeks after the date of her surgery. Id. ¶ 31. On April 6, 2011, Defendant informed Plaintiff that her employment had been terminated and that it was Defendant's understanding that "Plaintiff willingly decided to leave the Defendant Company for personal reasons." Id. ¶ 32.
Plaintiff states that she did not voluntarily resign and never advised Defendant that she decided to leave her job. Id. ¶¶ 33-34. Plaintiff also maintains that at all relevant times she was capable of performing the functions or duties of her job "with or without a reasonable accommodation." Id. ¶ 36.
DISCUSSION
I. Standard of Review
To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient factual allegations in the complaint that, accepted as true, "'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff is not required to provide "detailed factual allegations" in the complaint, but must assert "more than labels and conclusions[] and a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. On such a motion, the court may consider only the complaint, documents attached to the complaint, matters of which a court can take judicial notice, or documents that the plaintiff knew about and relied upon. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). A district court considering a Rule 12(b)(6) motion must accept all factual allegations in the complaint as true, while also drawing all reasonable inferences in favor of the nonmoving party. ATSI Commc'ns, Inc., 493 F.3d at 98.
At the pleading stage, "a complaint alleging workplace discrimination and retaliation need not allege specific facts establishing a prima facie case of discrimination under McDonnell Douglas." Gonzalez v. Carestream Health, Inc., 520 F. App'x 8, 9-10 (2d Cir. 2013) (summary order) (citations omitted). Rather, "'the claim must be facially plausible and must give fair notice to the defendants of the basis for the claim.'" Barbosa v. Continuum Health Partners, Inc., 716 F. Supp. 2d 210, 215 (S.D.N.Y. 2010) (quoting Fowler v. Scores Holding Co., 677 F. Supp. 2d 673, 679 (S.D.N.Y. 2009)). Although a plaintiff need not plead each element of a prima facie case, the Court does "consider these elements in determining whether there is sufficient factual matter in the complaint which, if true, gives Defendant a fair notice of Plaintiff's claim and the grounds on which it rests." Pahuja v. Am. Univ. of Antigua, 11 Civ. 4607, 2012 WL 6592116, at *9 (S.D.N.Y. Dec. 18, 2012); see also Sommersett v. City of New York, 09 Civ. 5916, 2011 WL 2565301, at *5 (S.D.N.Y. June 28, 2011) ("[T]he elements [of a prima facie case] provide an outline of what is necessary to render [a plaintiff's employment discrimination] claims for relief plausible.").
II. Plaintiff's ADA Claims
A. Discrimination and Wrongful Termination
Title I of the ADA provides that "no covered entity shall discriminate 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). To establish a prima facie case of discrimination under the ADA, a plaintiff is required to show that "(1) plaintiff's employer is subject to the ADA; (2) plaintiff was disabled within the meaning of the ADA; (3) plaintiff was otherwise qualified to perform the essential functions of her job, with or without reasonable accommodation; and (4) plaintiff suffered [an] adverse employment action because of her disability." Jacques v. DiMarzio, Inc., 386 F.3d 192, 198 (2d Cir. 2004) (citation omitted).
The first element is not in dispute. Plaintiff alleges that Defendant is a covered entity under the ADA, and Defendant does not deny it. Plaintiff also alleges that she was disabled under the ADA. The statute provides that "[t]he term 'disability' means, with respect to an individual—(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(1). The ADA was amended in 2008 to clarify and expand the interpretation of "major life activity" to include "'caring for oneself, performing manual tasks . . . walking, standing, lifting, bending, speaking, breathing . . . and working,' as well as 'the operation of a major bodily function,' including 'neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.'" Hutchinson v. Ecolab, Inc., 09 Civ. 1848, 2011 WL 4542957, at *8 (D. Conn. Sept. 28, 2011) (quoting Pub. L. No. 110-325, 122 Stat. 3553, 3555 (2008)). Plaintiff alleges that the fibroid tumors, the surgery, and the recovery period following the procedure gave rise to an impairment that limited major life functions, including "normal cell growth and reproductive functions," as well as her ability to perform manual tasks, walk, stand, lift, bend, and work. Am. Compl. ¶¶ 13, 30. This is sufficient.
In opposition, Defendant contends that Plaintiff was not disabled because (1) Plaintiff has failed to allege that her tumors "inhibited her ability to perform her job" and (2) there is no record of an impairment that substantially limits one or more major life activities. Def. Mem. 8-9. The first argument is at odds with the language of the complaint and is unpersuasive. See Am. Compl. ¶ 30. With respect to the second point, Defendant contends that merely having a surgical operation is insufficient to establish a disability under the ADA. Defendant notes that "'records of hospitalization or other medical treatment do not per se establish a record of an ADA qualifying disability; rather, the evidence must establish a physical impairment that substantially impaired a major life activity.'" Def. Mem. 9 (quoting Graham v. Three Vill. Cent. Sch. Dist., 11 Civ. 5182, 2013 WL 5445736, at *17 (E.D.N.Y. Sept. 30, 2013)); see also Quintero v. Rite Aid of New York, Inc., 09 Civ. 6084, 2011 WL 5529818, at *13 (S.D.N.Y. Nov. 10, 2011). However, Defendant's argument is unavailing at this stage of the litigation. To dismiss on this ground would require the Court to make factual determinations regarding Plaintiff's condition and medical records that are inappropriate before discovery has taken place.
Defendant also argues that Plaintiff failed to provide either a record of her disability or the reason for her surgery when she requested time off and, accordingly, that Defendant cannot be held liable because it lacked awareness of Plaintiff's alleged disability. Def. Reply 3-6 (citing Raytheon Co. v. Hernandez, 540 U.S. 44, 55 n.7 (2003) ("If [an employer] were truly unaware that such a disability existed, it would be impossible for [its] hiring decision to have been based, even in part, on respondent's disability."); Chen v. Citigroup Inv., Inc., 03 Civ. 6612, 2004 WL 2848539, at *3 (S.D.N.Y. Dec. 9, 2004)). In support, Defendant submits Plaintiff's request for leave and the doctor's note provided to Defendant, Velarde Aff. Exs. C, D, ECF No. 18-1, both of which Plaintiff knew of and relied on in preparing the complaint and, therefore, may properly be considered by the Court. Chambers, 282 F.3d at 153. As Defendant points out, neither document describes Plaintiff's medical condition or provides the reason for the surgery. See Velarde Aff. Exs. C, D. However, a factual determination regarding Defendant's knowledge of Plaintiff's condition would be inappropriate at this early stage of the litigation, given that no discovery has taken place. According to the complaint, Plaintiff informed Defendant that she was having surgery that would require up to eight weeks of recovery time, and Defendant acknowledged and approved that request. Although Defendant may contest the sufficiency of this notice at a later stage, Plaintiff adequately alleges that Defendant was aware of her impairment. In short, Plaintiff puts forward sufficient allegations that her major life functions were impaired and that Defendant knew of her impairment.
Defendant also contends that it did not regard Plaintiff as disabled. Def. Mem. 5-8. The Court cannot, at this stage, make any such factual determinations. The amended ADA clarifies that the "regarded as" definition of "disability" does not protect impairments that are both transitory and minor. 42 U.S.C. § 12102(3)(B). Transitory means those impairments of "an actual or expected duration of 6 months or less." Id. "Whether the impairment at issue is or would be 'transitory and minor' is to be determined objectively." 29 C.F.R. § 1630.15(f) (2011). Although Plaintiff's alleged impairment was transitory, given that it lasted, at most, eight weeks, the complaint, construed broadly, does not support the conclusion that Plaintiff's impairment was "minor" as a matter of law. See Davis v. NYC Dep't of Educ., 10 Civ. 3812, 2012 WL 139255, at *6 (E.D.N.Y. Jan. 18, 2012) (denying motion to dismiss, in part, finding that "[a]lthough plaintiff's three-month period of disability appears to be 'transitory,' it is not apparent from the face of the Complaint that plaintiff's impairment was 'minor'").
The complaint also contains sufficient allegations with respect to the third and fourth elements of the prima facie case, as Plaintiff claims that she was terminated because of her disability despite being otherwise qualified to perform the essential functions of her job. According to the complaint, Defendant acknowledged that Plaintiff's time off was to last for at most eight weeks, and Plaintiff had arranged to return to work following her recovery. Thus, the complaint indicates that Plaintiff was still capable of performing her essential job functions once this recovery period was complete.
Finally, Plaintiff alleges that she was terminated because of her disability prior to the end of her post-surgery recovery period. This is an adverse action and is actionable under the statute. See Worster v. Carlson Wagon Lit Travel, Inc., 353 F. Supp. 2d 257, 271 (D. Conn. 2005) ("[T]ermination is undisputedly an adverse action."), aff'd., 169 F. App'x 602 (2d Cir. 2006). In opposition, Defendant argues that Plaintiff was not, in fact, fired because of her disability. Rather, Defendant contends that Plaintiff was "a terrible employee" who twice sought time off to avoid being terminated for cause. Def. Mem. 1, 7. In support of this argument, Defendant submits two exhibits: (1) a written reprimand regarding Plaintiff's performance at work and (2) a request from Plaintiff, dated only days later, for unpaid time off to take care of her sick mother. Velarde Aff. Exs. A, B, ECF No. 18-1. However, neither of these documents was discussed or relied on in the complaint, and, accordingly, the Court may not consider them in deciding this motion. Chambers, 282 F.3d at 153. Nor, at this stage, will the Court engage in a factual inquiry regarding Defendant's actual grounds for terminating Plaintiff's employment or evaluate whether Plaintiff's requests for time off were pretextual efforts to avoid termination. Although Defendant may be able to establish such facts at a later stage, Defendant's opposition papers do not call into question the sufficiency of the complaint. Plaintiff's claim for discriminatory or wrongful termination is sufficiently pleaded to survive a motion to dismiss.
B. Failure to Provide Reasonable Accommodation
The ADA further states that the term "discriminate," as used in the statute, includes
not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a
disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.42 U.S.C. § 12112(b)(5)(A). To establish a prima facie case for a failure to accommodate, a plaintiff must show "(1) that [she] is an individual who has a disability within the meaning of the statute, (2) that an employer covered by the statute had notice of [her] disability, (3) that with reasonable accommodation, [she] could perform the essential functions of the position . . . , and (4) that the employer has refused to make such accommodations." Stone v. City of Mount Vernon, 118 F.3d 92, 96-97 (2d Cir. 1997) (citation omitted).
As described above, Plaintiff alleges that she was disabled within the meaning of the statute and that Defendant was on notice of her disability. Plaintiff also presents sufficient allegations to satisfy the remaining third and fourth elements of a prima facie case. Specifically, Plaintiff alleges that she was capable of continuing to perform the essential functions of her job with a reasonable accommodation, namely six to eight weeks of time off to recover from the surgery, and that Defendant failed to provide such an accommodation. The Second Circuit has not definitively held that a reasonable accommodation could include unpaid leave for medical treatment. However, it has recognized that "[m]ost other circuits and the Equal Employment Opportunity Commission have concluded that, in some circumstances, an unpaid leave of absence can be a reasonable accommodation under the ADA." Graves v. Finch Pruyn & Co., 457 F.3d 181, 185 n.5 (2d Cir. 2006) (collecting cases); see also 29 C.F.R. Pt. 1630, App. § 1630.2(o) (providing that a reasonable accommodation may include "unpaid leave for necessary treatment"). The Second Circuit in Finch Pruyn noted that "the idea of unpaid leave of absence as a reasonable accommodation presents 'a troublesome problem, partly because of the oxymoronic anomaly it harbors'—the idea that allowing a disabled employee to leave a job allows him to perform that job's functions." 457 F.3d at 185 n.5 (citation omitted). The Second Circuit ultimately suggested, however, that such a literal reading of the statute might be "'unreasonably narrow and impractical.'" Id. (citation omitted). The Court is satisfied that, under the circumstances here, Plaintiff adequately alleges that "with reasonable accommodation she could perform the essential functions of the position" and that Defendant failed to make such an accommodation. Although Defendant initially granted Plaintiff eight weeks off, Defendant cut short the accommodation when it fired Plaintiff during her recovery, and it did so after Plaintiff indicated that she was capable of returning to work. Unlike in Mitchell v. Washingtonville Central School District, in which the Second Circuit held that an employee's request for indefinite leave of absence was not a reasonable accommodation when there was no expectation the employee would be able to return to work afterward, 190 F.3d 1, 9 (2d Cir. 1999), the leave requested here was finite, and Plaintiff communicated that she planned to return and was able to perform her job. The Court declines to hold such a request unreasonable as a matter of law. In its opposition, Defendant contends that because it only employs five sales people at the Madison Avenue store, an eight week leave of absence is not a reasonable accommodation. Def. Mem. 8. However, this argument goes beyond the four corners of the complaint, and any such fact-dependent inquiry into the reasonableness of Plaintiff's requested accommodation would be inappropriate at this stage. Plaintiff adequately states an ADA failure to accommodate claim.
In an analogous case, the district court denied summary judgment and held that a seventeen-week leave of absence could constitute a reasonable accommodation. Powers v. Polygram Holding, Inc., 40 F. Supp. 2d 195, 199-201 (S.D.N.Y. 1999) (collecting cases). The court identified four circumstances in which a request for leave would constitute an unreasonable accommodation as a matter of law: "1) where the request is for a very long leave of absence, such as one year (although we do not here hold that any exact number is the 'red line' that demarcates the reasonable from the unreasonable); 2) where the absences are so sporadic that the employer has no way of knowing, from one day to the next, if their employee will even be reporting to work; 3) where it is clear that, even when the employee returns from the requested leave of absence, he or she will still be unqualified to perform the essential functions of their job; or 4) where the employee was hired to perform a specific task in a finite period of time, and the leave of absence would make it impossible for that task to be completed in that time." Id. at 201. Taking the complaint at face value, none of these circumstances is present here. See also Garcia-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638, 649-50 (1st Cir. 2000) (holding, in the absence of a showing of undue hardship to the employer, that a "requested accommodation of a few additional months of unsalaried leave, with the job functions being satisfactorily performed in the meantime, is reasonable"). --------
C. Retaliation
The ADA also prohibits retaliation against an individual who has "opposed any act or practice made unlawful under the ADA." 42 U.S.C. § 12203. To establish a prima facie case of retaliation, a plaintiff must show that "(1) [she] engaged in an activity protected by the ADA; (2) the employer was aware of this activity; (3) the employer took adverse employment action against [her]; and (4) a causal connection exists between the alleged adverse action and the protected activity." See Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). Plaintiff argues that in requesting that Defendant give her time off to recover from her surgery she was seeking a reasonable accommodation. Am. Compl. ¶¶ 62-70. Given that Plaintiff alleges that she was disabled under the ADA, this request may constitute a protected activity. See Graham v. Women in Need, Inc., 13 Civ. 7063, 2014 WL 2440849, at *4 (S.D.N.Y. May 30, 2014) ("Seeking reasonable accommodation for a disability constitutes a 'protected activity,' and retaliation in response to a plaintiff's request for reasonable accommodation may violate the ADA's prohibition on retaliation." (citing Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 149 (2d Cir. 2002))). Plaintiff also propounds sufficient factual allegations relating to the timing and circumstances of her termination, which, if proven, could show that Defendant's decision to terminate her employment was made in retaliation to her request. See Young v. Westchester Co. Dep't of Social Servs., 57 F. App'x 492, 495 (2d Cir. 2011) ("Ordinarily, causality can be inferred from the fact that 'the protected activity was closely followed in time by the adverse action.'" (citation omitted)). Accordingly, Plaintiff states a claim for retaliation.
In sum, the allegations in the complaint are sufficient to render Plaintiff's federal claims plausible and to put Defendant on notice of the basis of this lawsuit.
III. Plaintiff's State and Local Claims
Plaintiff also asserts claims for discrimination, failure to accommodate, and retaliation under both the NYSHRL and NYCHRL. State and local disability claims are analytically distinct from their federal counterparts, in that claims brought under those statutes are more broadly construed than claims asserted under the ADA. See Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013); Batac v. Pavarini Const. Co., 216 F. App'x 58, 61 (2d Cir. 2007).
The NYSHRL defines "disability" more broadly than the ADA and does not require a plaintiff to identify a major life activity that is substantially limited by the impairment. See Treglia, 313 F.3d at 723-24; Franklin v. Consol. Edison Co. of N.Y., Inc., 98 Civ. 2286, 1999 WL 796170, at *10 (S.D.N.Y. Sept. 30, 1999) (The NYSHRL requires only "an impairment, not an impairment that substantially limits a major life activity."). Thus, the impairments identified in the complaint are sufficient to meet this standard. See also Picinich v. United Parcel Serv., 321 F. Supp. 2d 485, 500 (N.D.N.Y. 2004) ("[I]f the court finds that [plaintiff] is disabled under the ADA, he is likewise disabled under [NYSHRL]."). The remaining requirements to state a prima facie case of discrimination, failure to accommodate, and retaliation under the NYSHRL are the same as under the ADA. See, e.g., Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 212 n.3 (2d Cir. 2001); Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir. 2000). Accordingly, for the reasons provided above, see supra Section II, Plaintiff adequately states claims for discrimination, failure to accommodate, and retaliation under the NYSHRL.
Likewise, the 2005 amendments to the NYCHRL created "a one-way ratchet," Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009), such that the federal and state statutes provide "a floor but not a ceiling" in evaluating a plaintiff's disability claims. Rodriguez v. Verizon Telecom, 13 Civ. 6969, 2014 WL 6807834, at *8 (S.D.N.Y. Dec. 3, 2014). Because the Court finds that Plaintiff meets her pleading burden as required by the ADA and NYSHRL, it likewise finds that Plaintiff meets her burden under the more liberal NYCHRL standard. See Jeffrey v. Montefiore Med. Ctr., 11 Civ. 6400, 2013 WL 5434635, at *24 (S.D.N.Y. Sept. 27, 2013). Accordingly, Plaintiff adequately states claims for discrimination, failure to accommodate, and retaliation under the NYCHRL.
CONCLUSION
For the reasons stated above, Defendant's motion to dismiss is DENIED.
The Clerk of Court is directed to terminate the motion at ECF No. 15.
SO ORDERED. Dated: December 30, 2014
New York, New York
/s/_________
ANALISA TORRES
United States District Judge