Ahmed v. City of New York Department of Health And Mental Hygiene et al

Motion to Dismiss for Failure to State a Claim

E.D.N.Y.February 28, 2017

February 28, 2017 BY ECF Hon. Margo K. Brodie United States District Judge Eastern District of New York 225 Cadman Plaza East, N 626 Brooklyn, NY 11201 Re: Ahmed v. City of New York Dep’t of Health & Mental Hygiene et al. 16-CV-5551 (MKB) (LB) Dear Judge Brodie: I am an Assistant Corporation Counsel in the office of Zachary W. Carter, Corporation Counsel of the City of New York, assigned to represent Defendants in the above- referenced action. Pursuant to Your Honor’s individual rules, Defendants write to respectfully request a pre-motion conference to seek leave to move to dismiss all of Plaintiff’s claims. This action should be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a claim. A. Factual Background Plaintiff, a current employee of the New York City Department of Health and Mental Hygiene (“DOHMH”), brings this lawsuit alleging discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”); the Age Discrimination in Employment Act of 1967 (“ADEA”); and the New York City Human Rights Law (“NYCHRL”). Plaintiff asserts discrimination claims on the basis of her actual or perceived age and religion (Islam). Plaintiff alleges that DOHMH, David Mohanan, and Sean McFarlane treated her disparately for purposes of pay, promotion, and promulgation of responsibility, either with retaliatory intent or with discriminatory animus. Plaintiff summarily alleges that, by creating a new position within Plaintiff’s unit and hiring Defendant David Mohanan as her immediate supervisor, DOHMH retaliated against her in response to her filing of an earlier settled 2014 U.S. Equal Employment Opportunity Commission (“EEOC”) charge. The EEOC brokered a settlement between Plaintiff and DOHMH in April 2015, granting Plaintiff a religious accommodation to leave work early on Fridays for religious services. Finally, although Plaintiff alleges claims for age discrimination and retaliation under both the ADEA and the NYCHRL, scant factual detail is given to support any of her age-related claims. B. Plaintiff Has Failed to State a Prima Facie Claim for Discrimination or Retaliation under Title VII, the ADEA, or the NYCHRL ZACHARY W. CARTER Corporation Counsel THE CITY OF NEW YORK LAW DEPARTMENT 100 CHURCH STREET, ROOM 2-183 NEW YORK, NY 10007 JOHN CORBIN CARTER Assistant Corporation Counsel Labor and Employment Law Division Phone: (212) 356-2078 jocarter@law.nyc.gov Case 1:16-cv-05551-MKB-LB Document 16 Filed 02/28/17 Page 1 of 3 PageID #: 72 2 To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead facts adequate “to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To be facially plausible, a complaint must plead “factual content that allows the court to draw the reasonable inference that the Defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). This “requires more than labels and conclusions.” Twombly, 550 U.S. at 555. The Second Circuit recently reaffirmed that to survive a motion to dismiss a plaintiff “must plausibly allege” that he or she suffered an adverse action and that plaintiff’s protected class membership “was a motivating factor in the employment decision.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015). In the context of an employment discrimination complaint, the “requirement to plead facts is assessed in light of the presumption that arises in the plaintiff's favor under McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] in the first stage of the litigation.” Littlejohn, 795 F.3d at 310. Absent direct evidence of discrimination, to survive a motion to dismiss a discrimination complaint, the allegations “must be plausibly supported by facts alleged . . . that [1] the plaintiff is a member of a protected class, [2] was qualified, [3] suffered an adverse employment action, and [4] has at least minimal support for the proposition that the employer was motivated by discriminatory intent.” Id. at 311 (emphasis added). Although the NYSHRL and NYCHLR cover a broader range of conduct than Title VII, under each “[t]he plaintiff still bears the burden of showing that the conduct is caused by a discriminatory motive.” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109-10 (2d Cir. 2013). Retaliation claims, like disparate treatment claims, are analyzed under the burden- shifting framework set forth in McDonnell Douglas. To establish a prima facie case of retaliation, plaintiff must make a showing that: (1) she participated in a protected activity, (2) defendants knew of the protected activity, (3) she was subject to an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse employment action. Kwan v. Andalex Grp., LLC, 737 F.3d 834, 843-44 (2d Cir. 2013). The instant Amended Complaint fails to meet the plausibility standard under Twombly and Iqbal. Beyond stating in wholly conclusory fashion that she was retaliated against for making a religious accommodation request, Plaintiff has failed to provide the Court any facts from which it can be inferred that any complained of act was attributable to retaliation or discrimination against her for her religious beliefs. Furthermore, Plaintiff mentions, only in passing, her age as a basis for unequal treatment after a younger manager was designated to supervise her, but such invocation alone, absent the tether of sufficient and plausible allegations, provides no factual support for these claims. Plaintiff does not allege that she applied for Mr. Mohanan’s position or that she was qualified for it. Plaintiff’s Amended Complaint admits that she reached an April 2015 settlement releasing all claims from her 2014 EEOC charge regarding her religious accommodation request, but seeks to somehow resuscitate those claims here. See Am. Compl. ¶¶ 17-32. Crucially, Plaintiff does not allege any adverse action or material alteration in her duties that can be tied to any retaliation or discrimination on Defendants’ behalf. Indeed, the Amended Complaint amounts to nothing more than “the recitation of a false syllogism: (1) I am (insert name of a protected class); (2) something bad happened to me at work; (3) therefore, it happened because I am (insert name of protected class).” Bermudez v. City of New York, 783 F. Supp. 2d 560, 581 (S.D.N.Y. 2011) (citing Grillo v. N.Y. City Transit Auth., 291 F. 3d 231, 235 (2d Cir. 2002)). Accordingly, Plaintiff’s contentions are unavailing, and the Amended Complaint must be dismissed for failure to state any plausible claim. See e.g., Case 1:16-cv-05551-MKB-LB Document 16 Filed 02/28/17 Page 2 of 3 PageID #: 73 3 Coleman v. BrokersXpress, LLC, 375 F. App'x 136, 137 (2d Cir. 2010) (“[Plaintiff] failed to allege facts sufficient to render plausible his conclusory allegations” of discrimination); Chung v. City Univ. of N.Y., No. 12-CV-4045, 2014 U.S. Dist. LEXIS 124601, *4 (S.D.N.Y. Aug. 27, 2014) (The “factual allegations do not sufficiently state a connection between the alleged adverse employment actions and discriminatory racial animus on the part of Defendant's managerial staff to raise Plaintiff's right to relief above a speculative level”). Accordingly, the Complaint must be dismissed under Fed. R. Civ. P. 12(b)(6). C. All Claims Against Defendants David Mohanan and Sean McFarlane Must Be Dismissed under the New York City Human Rights Law Pursuant to The Honorable U.S. Magistrate Judge Lois Bloom’s October 13, 2016 Order, and in accordance with Fed. R. Civ. P. 4(m), “if service is not made upon the defendants by January 3, 2017, or if plaintiff fails to show good cause why such service has not been effected by that date, it will be recommended that the Court should dismiss this action without prejudice.” See ECF No. 4, at 1. The Amended Complaint was served upon Defendants City and DOHMH on December 29, 2016. See ECF No. 9-10. However, Defendants Mohanan and McFarlane were not served until January 5, 2017, two days later than the service deadline allowed by the Federal Rules and Magistrate Judge Bloom’s clear October 13, 2016 Order. Accordingly, Defendants Mohanan and McFarlane should be dismissed from this action for failure to effect timely service. Additionally, Plaintiff’s Amended Complaint states that Defendant Mohanan was hired on December 21, 2015. See Am. Compl. ¶ 40. Despite the fact that Mr. Mohanan was employed by DOHMH for only three weeks before Plaintiff brought her January 13, 2016 EEOC charge (the origin of the instant action), and despite the dearth of allegations in the Amended Complaint that Mr. Mohanan engaged in any negative conduct whatsoever toward Plaintiff during that three-week period, Mr. Mohanan is still named as a Defendant in Plaintiff’s action. Plaintiff has not-and cannot-plead that Mr. Mohanan engaged in retaliatory or discriminatory conduct in that three-week period, and Mr. Mohanan must be dismissed as a Defendant under Fed. R. Civ. P. 12(b)(6). Accordingly, Defendants respectfully request that the Court hold a pre-motion conference with respect to Defendants’ anticipated motion to dismiss. Defendants also respectfully request a stay of discovery pending the outcome of their motion to dismiss. I thank the Court for its consideration of the foregoing request. Respectfully Submitted, /s/ John Corbin Carter Assistant Corporation Counsel cc: Alex Umansky, Esq. (by ECF) LAW OFFICES OF YURIY MOSHES, P.C. Attorneys for Plaintiff 517 Brighton Beach Avenue, 2nd Floor Brooklyn, New York 11235 Case 1:16-cv-05551-MKB-LB Document 16 Filed 02/28/17 Page 3 of 3 PageID #: 74