Summary
finding that the Charter precludes employment discrimination actions brought against city agencies
Summary of this case from Healy v. City of New York Department of SanitationOpinion
03 Civ. 4182 (JSR)(JCF)
December 12, 2003
REPORT AND RECOMMENDATION
Carletta Thompson brings this employment discrimination actionpro se, alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq. She claims that her employer, the New York City Department of Probation, discriminated against her on the basis of disability. The defendant has moved to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim. For the reasons that follow, I recommend that the motion be denied.
This summary of facts is taken from the Complaint and the plaintiff's statement attached to the Complaint and dated June 9, 2003. The Complaint was prepared on a form provided by the Pro Se Office of this Court. In considering the defendant's motion, I have also reviewed the facts alleged in the plaintiff's opposition papers, see Ullah v. NYDOCS, No. 00 Civ 9506, 2002 WL 1424590, at *4 (S.D.N.Y. June 28, 2002) (pro se plaintiff's memorandum of law can be treated as part of complaint for purposes of deciding motion to dismiss), as well as the exhibits attached to the Complaint and to the plaintiff's opposition papers. See Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (complaint deemed to include all attachments to complaint and documents incorporated by reference).
The plaintiff alleges that her disabilities are carpal tunnel syndrome and other "back and neck" ailments. (Complaint ("Compl.") at 3). She alleges that the defendant: (1) failed to accommodate her disability, (2) subjected her to unequal terms and conditions of employment, (3) retaliated against her, and (4) refused to pay her medical bills for chiropractic services. (Compl. at 3).
On or about November 13, 1995, the plaintiff was hired by the New York City Department of Probation and assigned to the K.S.I.R. Unit in Brooklyn. (Statement of Carletta Thompson dated June 9, 2003, attached to Complaint ("6/9/03 Statement"), at 1). The plaintiff worked without an "ergonomic workstation" at this assignment and experienced lower back pain. (6/9/03 Statement at 1). She also received "telephone harassment" from co-workers. (6/9/03 Statement at 1).
The record does not indicate the full name of the K.S.I.R. Unit.
On or about January 6, 1997, the plaintiff was transferred to the Nova Ancora Program in Manhattan. (6/9/03 Statement at 1). She was diagnosed with carpal tunnel syndrome on March 11, 1998, and her employer subsequently provided her with two ergonomic chairs and a headset to accommodate her condition. (6/9/03 Statement at 1). The plaintiff requested a transfer to a unit that "would not further aggravated [sic] [her] carpal tunnel syndrome." (6/9/03 Statement at 2). On April 9, 1998, she submitted a claim for workers' compensation benefits. (6/9/03 Statement at 2). The plaintiff received further telephone harassment from her co-workers. (6/9/03 Statement at 2).
On or about September 28, 1998, the plaintiff was transferred to Manhattan Family Intake Services and assigned to the Investigation Unit. (6/9/03 Statement at 2). Her job required a significant amount of writing and sitting, which aggravated her carpal tunnel condition. (6/9/03 Statement at 2). Ms. Thompson submitted four transfer requests, each of which was denied. (6/9/03 Statement at 2). She was provided with an "Executive talk voice processing system" to use for her job. (6/9/03 Statement at 2). Beginning January 1, 1999, the plaintiff was assigned 14 cases per month, the same caseload carried by non-disabled employees. (6/9/03 Statement at 2). During this assignment, the plaintiff was called names such as "gay," "Jap," and "tramp," and on one occasion, the harassment began after the plaintiff complained about co-workers playing loud music. (6/9/03 Statement at 2). The plaintiff filed a charge with the New York State Division of Human Rights ("NYSDHR") on February 16, 1999. (6/9/03 Statement at 2).
From October 8 to October 22, 1999, the plaintiff was absent from work due to severe headaches. (6/9/03 Statement at 3). She was denied use of her sick leave benefits for this period, and her paycheck was reduced to reflect the missed time. (6/9/03 Statement at 3). On November 9, 1999, the plaintiff filed a grievance through her union, but the grievance was subsequently denied. (6/9/03 Statement at 3-4).
On or about January 28, 2000, the plaintiff was transferred to Linden House in Brooklyn. (6/9/03 Statement at 3). At this assignment, she was referred to as "gay" and continued be harassed by co-workers. (6/9/03 Statement at 4). In May 2001, the plaintiff requested an ergonomic keyboard, which she later received. (6/9/03 Statement at 4-5). However, her ergonomic chair and a headset were stolen from her. (6/9/03 Statement at 5 Exh. 5ii).
On or about January 4, 2002, the plaintiff was transferred to the Manhattan Alternative to Detention Program, then to the Kings Family Service, E.O.P. Unit on or about December 9, 2002. (6/9/03 Statement at 5). On or about April 11, 2002, the plaintiff submitted a second claim for workers' compensation benefits, but she was denied payment for the medical bills of Dr. Handt, her chiropractor. (6/9/03 Statement at 5). In March 2003, the mouse for her ergonomic keyboard was stolen. (6/9/03 Statement at 5).
Again, there is no indication in the record what the acronym E.O.P." stands for.
The NYSHDR determined that the plaintiff's rights had not been violated, and the United States Equal Opportunity Commission ("EEOC") adopted the state agency's findings and issued a right to sue letter on May 21, 2003. The plaintiff then submitted her complaint to this Court on or about June 9, 2003.
Discussion
In considering a motion to dismiss pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, the court must accept as true all factual allegations in the complaint and must draw all inferences in favor of the plaintiff. Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993); York v. Association of the Bar of the City of New York, 286 F.3d 122, 125 (2d Cir. 2002); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). Accordingly, the complaint may not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). These principles are even more strictly applied where the plaintiff alleges civil rights violations, see Hernandez, 18 F.3d at 136; Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991), or where the plaintiff proceeds pro se,see Haines v. Kerner, 404 U.S. 519, 520 (1972); Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000). In considering a pro se complaint, "courts must construe [the complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggests."Weixel v. The Board of Education of the State of New York, 287 F.3d 138, 146 (2d Cir. 2002); see also Cruz, 202 F.3d at 597.
A. Sufficiency of the Pleadings
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Such a statement is intended only to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Conley, 355 U.S. at 47. The United States Supreme Court recently held that, to comply with Rule 8(a) (2), a plaintiff in an employment discrimination action need not plead specific facts establishing a prima facie case of discrimination.Swierkiewicz v. Sorema, 534 U.S. 506, 508 (2002). At the pleading stage, "before the reception of any evidence either by affidavit or admissions,. . . [t]he issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims."Id. at 511 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
1. Definition of "Disability"
The ADA prohibits employment discrimination "against a qualified individual with a disability because of the disability of such individual." 42 U.S.C. § 12112(a). A "disability" is defined in part as "a physical or mental impairment that substantially limits one or more . . . major life activities." 42 U.S.C. § 12102(2)(A). Under the EEOC regulations implementing the ADA, the term "major life activities" is further defined as "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." 29 C.F.R. § 1630.2(i). Other "major life activities" include "sitting, standing, lifting, [and] reaching."Ryan v. Grae Rybicki, P.C., 135 F.3d 867, 870 (2d Cir. 1998) (quoting EEOC's Americans with Disabilities Act Handbook 1-27 (1992)). To be "substantially limited" means to be: (1) "unable to perform" a major life activity that an "average person in the general population can perform," or (2) "significantly restricted" in the "condition, manner, or duration" of performing a major life activity, as compared to an "average person in the general population." 29 C.F.R. § 1630.2 (j)(1).
The EEOC's regulations are accorded "great deference," since the agency is charged with administering the ADA. Francis v. City of Meriden, 129 F.3d 281, 283 n. 1 (2d Cir. 1997).
The defendant contends that the plaintiff's pleadings are insufficient because Ms. Thompson fails to allege a "disability" within the meaning of the ADA. In her Complaint, the plaintiff identifies her disability as "carpal tunnel syndrome" and other "back and neck" ailments. (Compl. at 3). Under the ADA, these conditions qualify as "physical impairments," as they are "physiological disorder[s]" affecting the "musculoskeletal" system. 29 C.F.R. § 1630.2(h).
I note that proof of a "disability within the meaning of the ADA" is an element of the prima facie case for employment discrimination based on disability. See Ryan, 135 F.3d at 870 (citations omitted). While the failure to establish a prima facie case may not be grounds for dismissal, see Swierkiewicz, 534 U.S. at 508, the ADA itself requires proof of disability as it is defined therein, and a failure to offer facts in support of this element would require dismissal because, in the absence of a qualifying disability, "no set of facts . . . would entitle [the plaintiff] to relief." Conley, 355 U.S. at 45-46. Under the ADA definition of "disability," merely pleading a physical impairment without specifying that it "substantially limits" a "major life activity" may be insufficient to state a claim for relief.See, e.g., Harewood v. Beth Israel Medical Center, No. 02 Civ 5511, 2003 WL 21373279, at *1, 5 (S.D.N.Y. June 13, 2003) (citing Swierkiewicz, 534 U.S. at 508); Sacay v. Research Foundation of the City University of New York, 44 F. Supp.2d 496, 501-02 (E.D.N.Y. 1999) (collecting cases); cf. Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184, 195 (2002) (carpal tunnel syndrome is not per se disability without evidence of substantial limitation to major life activity); Weixel, 287 F.3d at 146-47 (under Title II of ADA, complaint is sufficient if it alleges: (1) disability within meaning of ADA, (2) plaintiff's qualification to receive benefit, and (3) denial of benefit because of disability). Contrast Benjamin v. New York City Department of Health, No. 99 Civ 12345, 2002 WL 485731, at *8 (S.D.N.Y. Mar. 29, 2002) (impairment alone sufficient in light of Swierkiewicz);Magee v. Nassau County Medical Center, 27 F. Supp.2d 154, 162 (E.D.N.Y. 1998) (impairment alone sufficient for pro se complaint).
While the plaintiff's pleadings do not specify the major life activity limited by her disability, they can be liberally read as alleging a limitation in the plaintiff's ability to work. For instance, the plaintiff states that work activities requiring excessive writing and sitting "aggravated my Carpal Tunnel Syndrome and caused . . . severe lower back, neck and shoulder pains and severe daily headaches." (6/9/03 Statement at 2). She also states that on one occasion in 1999, the daily headaches caused her to miss work for two weeks. (6/9/03 Statement at 3). Aside from working, the plaintiff states in her opposition papers that she is limited in "sitting, standing, lifting,. . .[and] reaching," and in an attached medical report, she claims difficulties in performing "household chores or other manual activities." (Plaintiff's Opposition to Defendant's Motion ("PI. Opp.") at 2 Exh. 11). The plaintiff also alleges limitations in walking and provides specific examples. (Pl. Opp. at 2). These allegations clearly identify qualifying "major life activities" under the ADA.
Moreover, the plaintiff alleges facts suggesting that she is "substantially limited" in performing the major life activities identified. For instance, the plaintiff states that, if she sleeps on her back or right side, she has difficulty walking the following morning. (Pl. Opp. at 2). She also states that she has difficulty walking after sitting continuously for several hours, and that she has difficulty climbing two flights of stairs. (Pl. Opp. at 2). These allegations are supported by a medical report that the plaintiff attached to her complaint. (Report of William L. King, M.D., attached as Exh. D of Exh. 2i to 6/9/03 Statement). Regardless of whether the plaintiff will "ultimately prevail,"Scheuer, 416 U.S. at 236, in proving that these limitations are significant as compared to the "average person in the general population," 29 C.F.R. § 1630.2(j)(1), her allegations state a claim to that effect and are sufficient to give fair notice to the defendant.
In light of the plaintiff's allegations regarding her ability to walk, I need not reach the issue of whether her alleged work restrictions are "substantial" because 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).
2. Hostile Work Environment
The defendant also contends that the plaintiff's allegations concerning "harassment or other discriminatory conduct" are insufficient as they fail to allege a causal connection between the alleged conduct and the plaintiff's disability. (Memorandum of Law in Support of Defendant's Motion to Dismiss the Complaint ("Def. Memo.") at 10 n. 7). Several courts in this district have recognized ADA claims based on harassment or a "hostile work environment." See, e.g., Scott v. Memorial Sloan-Kettering Cancer Center, 190 F. Supp.2d 590, 599 (S.D.N.Y. 2002) (equating ADA standard for hostile environment claims to that of Title VII); Disanto v. McGraw-Hill, Inc./Platt's Division, No. 97 Civ. 1090, 1998 WL 474136, at *5 (S.D.N.Y. Aug. 11, 1998). As the ADA only prohibits discrimination "because of" a disability, 42 U.S.C. § 12112 (a), proof of causation is required. However, in meeting the pleading requirements of Rule 8(a), a plaintiff need not "append to each allegation of harassment the conclusory declaration and this was done because of my [disability].'" Gregory v. Daly, 243 F.3d 687, 694 (2d Cir. 2001). "[W]hat is needed is the allegation of factual circumstances that permit the inference that plaintiff was subjected to a hostile work environment because of her [disability]."Id.
In her pleadings, the plaintiff cites numerous instances of "telephone harassment" and other verbal abuse that she allegedly received from her co-workers. (6/9/03 Statement at 1-4). With respect to the content of the verbal harassment, the plaintiff states that she was called names such as "gay," "Jap," and "tramp," none of which appears to make direct reference to her disability. The plaintiff states that on one occasion, the harassment began when she complained about "coworkers playing loud music." (6/9/03 Statement at 2). In her most recent allegations, the plaintiff states that a co-worker stole her ergonomic chair, headset, and computer mouse, all of which were items provided to accommodate her carpal tunnel syndrome. (6/9/03 Statement at 5).
While this case presents a close call, the plaintiff's allegations are sufficient to permit the inference that the alleged incidents of harassment were motivated by her disability. It is not necessary that the harassing words or conduct refer specifically to the plaintiff's handicap. See Gregory, 243 F.3d at 694-95 (comment that plaintiff was "stupid and incompetent" could demonstrate harassment based on sex). Moreover, the later incidents do appear related to the plaintiff's disability. When considering the long history of disputes between the plaintiff and her employer concerning accommodations for her carpal tunnel syndrome, it cannot be said the plaintiff can show "no set of facts,"Conley, 355 U.S. at 45, to prove that her disability was related to the alleged harassment.
3. Retaliation
It is unclear whether the defendant, by its reference to "harassment or other discriminatory conduct" (Def. Memo at 10 n. 7), also seeks to challenge the plaintiff's retaliation claim as inadequately alleging facts to support causation. The pleadings, in any case, are explicit in this regard. The ADA prohibits discrimination "against any individual because such individual has opposed any act or practice made unlawful by this [Act]." 42 U.S.C. § 12203 (a). A retaliation claim can be premised on an individual's request for reasonable accommodations.See Sacay, 44 F. Supp.2d at 504. Here, the plaintiff alleges that in June 1998, she requested a transfer to prevent a further aggravation of her carpal tunnel syndrome. (6/9/03 Statement at 2). She states that, "in retaliation," she was then assigned to the Investigation Unit and given job tasks that only worsened her condition. (6/9/03 Statement at 2).
In addition, while the defendant is correct that this Court lacks jurisdiction over claims for workers' compensation benefits,see N.Y. Workers' Comp. § 11, the plaintiff's pleadings can be liberally construed as alleging that the employer's interference with her receipt of benefits, as well as its rejection of her union grievance, resulted from the plaintiff's requests for accommodation or the complaints she filed with government agencies. For instance, the plaintiff alleges that during her assignment with the Investigation Unit, she made four transfer requests (which were denied), then filed a charge with the NYSDHR. (6/9/03 Statement at 2). Subsequently, Philip Dobbs, the Branch Chief of the Investigation Unit, denied the plaintiff use of her sick leave benefits to cover a two-week absence, a dispute that became the subject of her union grievance. (6/9/03 Statement at 3). Mr. Dobbs also commented to the plaintiff that she had "stepped on someone [sic] toes high up." (6/9/03 Statement at 3). Additionally, the plaintiff alleges that she was denied payment for her chiropractor's bills when she filed her second workers' compensation claim in 2002. (6/9/03 Statement at 5). However, she experienced no such denial of coverage when she filed her the first claim in April 1998 before transferring to the Investigation Unit. (6/9/03 Statement at 2).
While the plaintiff does not specify the manner in which her employer allegedly interfered with her receipt of benefits, the timing of the second denial of coverage is sufficient to raise the inference that some form of interference did occur. The defendant, in any case, does not raise any issue other than causation in challenging the sufficiency of the pleadings with respect to the retaliation claim.
Broadly construed, the pleadings therefore state sufficient facts to support the causation element of the plaintiff's retaliation claim. The plaintiff's allegations pertaining to her workers' compensation claim and union grievance should be construed as part of this claim. See, e.g., Muller v. Costello, No. 94 Civ. 842, 1996 WL 191977, at *6 n. 16 (N.D.N.Y. April 16, 1996) ("discriminatory manipulation of [plaintiff's] employment benefits," including sick leave and workers' compensation, can form basis of ADA retaliation claim).
B. Timeliness
The defendant contends that certain portions of the Complaint should be dismissed because they are time-barred. As a prerequisite to a civil suit under the ADA, a plaintiff is required to file a charge with the EEOC within 300 days of the alleged unlawful acts. See 42 U.S.C. § 2000e-5(e)(1), 12117(a). Here, the plaintiff filed a charge with the NYSDHR on February 16, 1999. Accordingly, the defendant argues that any claims based on acts occurring more than 300 days prior to that date — i.e., prior to April 22, 1998 — should be dismissed.
The defendant concedes that the plaintiff's charge was accepted by the NYSDHR on behalf of the EEOC. (Def. Memo. at 11 n. 8).
However, the plaintiff's pleadings do not appear to allege any pre-April 22, 1998 acts pertaining to her failure-to-accommodate or retaliation claim. The plaintiff states that she was hired by the defendant on November 13, 1995, and that she worked without an "ergonomic workstation" at her first work assignment. (6/9/03 Statement at 1). She does not allege that she made any requests for accommodations during her first assignment, nor does she allege that the defendant refused such requests or retaliated against her for making them. Instead, the plaintiff states that she was diagnosed with carpal tunnel syndrome on March 11, 1998, and appears to allege that she requested accommodations at that time. (6/9/03 Statement at 1). Accordingly, no portion of the failure-to-accommodate or retaliation claim can be dismissed on the basis of untimeliness.
Despite the absence of any factual allegations, the plaintiff indicates in her form complaint that the defendant's discriminatory conduct commenced in February 1998. (Compl. at 3). To the extent that the defendant wishes to clarify whether any of the plaintiff's claims arise from acts occurring prior to April 22, 1998, it can do so through the use of interrogatories or deposition. See Burch v. Beth Israel Medical Center, No. 02 Civ. 3798, 2003 WL 253177, at *6 (S.D.N.Y. Feb. 5, 2003).
With respect to her hostile work environment claim, the plaintiff alleges that she was the victim of "telephone harassment" during her first work assignment, which lasted from November 13, 1995 to January 5, 1997. Under National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002), a plaintiff asserting a hostile work environment claim need only file a timely EEOC charge with respect to any one act that forms a part of the claim. As a consequence, the entire period of the claim, including acts falling outside the filing period, may be considered for purposes of determining liability. Id. at 117. Here, the plaintiff alleges numerous acts of harassment that occurred after April 22, 1998, and as to these acts, her EEOC charge was timely. Accordingly, the allegations of "telephone harassment" occurring prior to April 22, 1998 should be considered as part of her hostile work environment claim.
C. Suable Entities
Finally, the defendant contends that the Complaint should be dismissed because it names as a defendant only the New York City Department of Probation, which is not a suable entity. New York City Charter § 396 states that "all actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York and not in that of any agency." This provision precludes employment discrimination actions brought against city agencies. See, e.g., Manessis v. New York City Department of Transportation, No. 02 Civ. 359, 2003 WL 289969, at *1 n. 2 (S.D.N.Y., Feb. 10, 2003) (ADA action); Weiss v. The City of New York, 96 Civ. 8281, 2001 U.S. Dist. LEXIS 15404, at *19 (S.D.N.Y. May 7, 2001) (same); but see Robinson v. City of New York, No. 00 Civ. 0426, 2002 WL 188353, at *2 (S.D.N.Y. Feb. 6, 2002) (police department can be sued in its role as employer in Title VII action). In consideration of the plaintiff's pro se status, the Complaint should be deemed amended to name the City of New York as the sole defendant. Manessis, 2003 WL 289969, at *1 n. 2.
Conclusion
For the reasons set forth above, I recommend that the defendant's motion to dismiss be denied and that the Complaint be deemed amended to name the City of New York as the sole defendant. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Jed S. Rakoff, Room 1340, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.