-RLM Peterson v. Long Island Railroad Company, No. 1:2010cv00480 - Document 7 (E.D.N.Y. 2010)
Court Description: ORDER denying 2 Motion to Dismiss. Ordered by Senior Judge I. Leo Glasser on 6/30/2010. (Keller, Matthew)
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-RLM Peterson v. Long Island Railroad Company Doc. 7 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------x MICHAEL K. PETERSON, Plaintiff, MEMORANDUM AND ORDER 10 Civ. 480 (ILG) -againstLONG ISLAND RAILROAD COMPANY, Defendant. ------------------------------------------------x GLASSER, United States Senior District J udge: Plaintiff Michael K. Peterson (“Peterson” or “plaintiff”) brought this action against his form er-em ployer, defendant Long Island Rail Road Com pany (“LIRR”) alleging retaliation in violation of the Fam ily and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C.§§ 260 1 et seq. and race-based em ploym ent discrim ination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C.§ 200 0 e et seq. LIRR now m oves to dism iss the com plaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons explained below, the Court denies LIRR’s m otion. FACTS The facts as set forth below are drawn from the com plaint, the allegations of which the Court accepts as true solely for purposes of this m otion to dism iss. Plaintiff, an African-Am erican m ale, worked for defendant from approxim ately J une 1997 until som e point in 20 0 8. See dkt. # 1 (“Com plaint”)¶¶14, 19. Peterson began his em ploym ent at LIRR as an Assistant Signalm an and was prom oted to Electrician in 1999, a position he m aintained for the rem ainder of his tim e with LIRR. Id.¶¶20-21. Beginning in J une 20 0 7, Peterson requested, and was granted, “interm ittent” leave under FMLA in order to 1 Dockets.Justia.com care for his wife who suffered from hypertension. Id.¶22. As a result of taking this leave, Peterson claim s that he was subjected to harassm ent and disparate treatm ent by his supervisors, including “excessive scrutiny” and “verbal harassm ent.” Id.¶¶23-24. In the course of a May 14, 20 0 8, incident, Peterson’s white supervisor, Vito Dorsi, m ade derogatory com m ents about Peterson taking FMLA leave, including an accusation that Peterson was abusing the leave. Id.¶ 28. Dorsi also referred to Peterson as “you people,” referring to Peterson “and other African-Am ericans on FMLA.” Id.¶27.1 On J une 26, 20 0 8, plaintiff was “taken out of service and falsely charged with assaulting two other em ployees, threatening a supervisor with physical harm , and conduct unbecom ing an em ployee”based on events that had occurred on May 14, the sam e date on which the alleged retaliatory and discrim inatory com m ents by Dorsi were m ade. Com plaint ¶ 29. In J une or J uly 20 0 8, Peterson attended a disciplinary hearing on the charges against him , but LIRR never took a statem ent from him , never provided him with a statem ent of charges nor did it afford Peterson an opportunity to respond to those charges in writing. Id.¶¶30-32. Following the hearing, LIRR dism issed Peterson. His union appealed that determ ination and the punishm ent was thereafter reduced to a suspension of approxim ately five and one-half m onths. Id.¶¶33-34. Peterson alleges that, regardless of his ability to return to work, the harassm ent and retaliation he experienced am ounted to a constructive discharge. Id.¶ 36. 1 Peterson alleges that “at least one supervisor has been heard com plaining about em ployees taking FMLA leave in general, and specifically the Plaintiff’s FMLA leave.” Com plaint ¶ 25. It is reasonable to infer that the “one supervisor” refers to Mr. Dorsi, who is alleged to have com plained about Peterson’s FMLA leave and that of other AfricanAm erican em ployees. 2 Prior to these events, Peterson had a “clean disciplinary record,” id.¶26, and he claim s that, “[s]imilarly situated white em ployees who are guilty of equivalent and even m ore serious offenses are not punished as severely” as he was. Id.¶ 35. He claim s that the treatm ent he experienced am ounted to retaliation in response to his exercise of FMLA rights and race discrim ination in violation of Title VII. DISCUSSION I. Stan d ard o f Re vie w On a m otion to dism iss, a district court should assess the form al feasibility of the plaintiff’s claim for relief rather than weigh the evidence that m ight be offered to support it. Global Network Com m unications, Inc. v. City of New York, 458 F.3d 150 , 155 (2d Cir.20 0 6). The court m ust construe in the plaintiff’s favor all well-pleaded allegations in the com plaint. Strougo v. Bassini, 282 F.3d 162, 167 (2d Cir.20 0 2). To be sufficient, a com plaint not only m ust include a short, plain statem ent of the claim showing the pleader is entitled to relief, Fed. R. Civ. P. 8(a), but also “requires m ore than labels and conclusions, and a form ulaic recitation of the elem ents of a cause of action will not do. Factual allegations m ust be enough to raise a right to relief above the speculative level . . . .” Bell Atlantic v. Twom bley, 550 U.S. 544 (20 0 7) (internal citations om itted). II. Pe te rs o n ’s FMLA Claim FMLA grants eligible em ployees the right to a total of 12 work weeks per year of unpaid leave in order to care for a spouse or im m ediate fam ily m em ber with a serious 3 health condition. 29 U.S.C.§ 2612(a)(1)(C). Em ployees who utilize such leave m ust be allowed to return to a prior position or an “equivalent position with equivalent em ploym ent benefits, pay, and other term s and conditions of em ploym ent.” 29 U.S.C.§ 2614(a)(1)(B). FMLA creates a private right of action for em ployees whose em ployers “‘interfere with, restrain, or deny the exercise of’ FMLA rights.” Sista v. CDC Ixis N. Am ., Inc., 445 F.3d 161, 174 (2d Cir. 20 0 6) (quoting Nev. Dep’t of Hum an Res. v. Hibbs, 538 U.S. 721, 724-25 (20 0 3)). The Second Circuit has organized FMLA claim s into two categories: “interference” and “retaliation.” Potenza v. City of New York, 365 F.3d 165, 167 (2d Cir. 20 0 4). In order to establish a prim a facie case of retaliation an em ployee m ust dem onstrate that: (1) he exercised rights protected under the FMLA; (2) he was qualified for his position; (3) he suffered an adverse em ploym ent action; and (4) the adverse em ploym ent action occurred under circum stances giving rise to an inference of retaliatory intent. Id. at 168. However, a com plaint asserting an em ploym ent discrimination claim , including an FMLA retaliation claim , need not plead specific facts establishing a prim a facie case of discrim ination in order to survive a m otion to dism iss. See Swierkiewicz v. Sorem a N.A., 534 U.S. 50 6, 514-15 (20 0 2) (holding that a Title VII com plaint need not allege “specific facts establishing a prim a facie case of discrim ination” under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), in order to survive a m otion to dism iss); Harper v. New York City Housing Auth., 673 F. Supp. 2d 174, 179 (S.D.N.Y. 20 0 9) (applying the Swierkiewicz rule to a FMLA retaliation claim ). Rather, at this stage a plaintiff need only plead facts sufficient to: (1) “state a claim to relief that is plausible on its face,” Harper, 673 F. Supp. 2d at 179 (citing Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (20 0 9)); 4 and (2) “‘give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests,’”Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 237 (2d Cir. 20 0 7) (quoting Swierkiewicz, 534 U.S. at 515). Applying these principles to this case it is clear that the com plaint sufficiently alleges a claim of FMLA retaliation. The com plaint alleges that Peterson exercised “interm ittent” FMLA leave in order to care for his ailing spouse. It also alleges that Peterson’s supervisor m ade degrading comm ents to Peterson, including accusing Peterson of abusing his FMLA rights to tim e off. Based on incidents that occurred on the sam e day as these com m ents, Peterson was “falsely charged” with assault and other charges. Whereas LIRR em ployees accused of m isconduct are “typically given a statem ent of charges [and an] opportunity to rebut” them, Peterson was denied both. These allegations –essentially a litany of adverse em ploym ent actions arising under circum stances closely connected to Peterson’s exercise of his right to FMLA leave – are sufficient to state a claim for relief that is plausible on its face and m ore than sufficient to give LIRR fair notice of Peterson’s FMLA retaliation claim . LIRR argues that the com plaint does not sufficiently allege that Peterson exercised his rights under FMLA. This argum ent is curious in light of paragraph 22 of the com plaint which states that Peterson “requested, and was granted, interm ittent leave under” FMLA from J une 20 0 7 until May 20 0 8. Shark v. City of New York, 0 3 Civ. 2616, 20 0 8 WL 4444122 (S.D.N.Y. Sept. 29, 20 0 8), upon which LIRR relies provides no support for dism issal of Peterson’s FMLA claim . In that case, the district court granted sum m ary judgm ent to the defendant because the plaintiff, following discovery, had failed to produce evidence that his child had a “serious health condition” entitling plaintiff 5 to FMLA leave. Id. at *5. But unlike the plaintiff in Shark, Peterson is not required to produce any evidence of his wife’s condition at this stage because he is resisting a m otion to dism iss and not a m otion for sum m ary judgm ent. Whereas a party opposing sum m ary judgm ent, “m ay not rely m erely on allegations or denials in its own pleading,” Fed. R. Civ. P. 56(e)(2), a party resisting a m otion pursuant to Rule 12(b)(6) is entitled to do precisely that and will prevail so long as those allegations state a facially plausible claim and provide to the defendant fair notice of that claim . The FMLA-related allegations of Peterson’s com plaint do both. LIRR also argues that Peterson has failed to sufficiently plead his constructive discharge. Peterson correctly points out that constructive discharge is not an essential elem ent of his FMLA claim without which the claim fails. Peterson’s com plaint pleads constructive discharge as one am ong several adverse em ploym ent actions LIRR allegedly took against him on the basis of his exercise of FMLA rights. Therefore any failure to sufficiently allege “a work atm osphere so intolerable that [Peterson was] forced to quit involuntarily,” is not fatal to his FMLA claim . Milne v. Navigant Consulting, No. 0 8 Civ. 8964, 20 0 9 WL 4437412, at *8-9 (S.D.N.Y. Nov. 30 , 20 0 9) (citing Terry v. Ashcroft, 336 F.3d 128, 152 (2d Cir. 20 0 3)). The other adverse em ploym ent actions alleged in the com plaint, including the charges filed against Peterson and the “highly unusual,” Com plaint ¶ 30 , procedures by which those charges were adjudicated constitute sufficient allegations of adverse em ploym ent actions in order to survive a m otion to dism iss. III. Pe te rs o n ’s Title VII Race D is crim in atio n Claim 6 To prevail on a Title VII disparate treatm ent claim based upon m em bership in a racial group, a plaintiff m ust ultim ately prove that (1) he is a m em ber of a protected class; (2) he is com petent to perform the job or is perform ing his duties satisfactorily; (3) he suffered an adverse em ploym ent decision or action; and (4) the decision or action occurred under circum stances giving rise to an inference of discrim ination based on his m em bership in that racial group. See Dawson v. Bum ble & Bum ble, 398 F.3d 211, 216 (2d Cir. 20 0 5). As with Peterson’s FMLA claim , he is not required to plead each elem ent of disparate treatm ent, but rather m ust plead a facially plausible claim with sufficient facts to “give the defendant fair notice . . . of what the claim is and the grounds upon which it rests.” Boykin v. KeyCorp, 521 F.3d 20 2, 212 (2d Cir. 20 0 8). LIRR argues that Peterson’s Title VII claim is “patently im plausible”because it is grounded upon only two allegations of race-based treatm ent: Dorsi’s reference to Peterson as, “you people” (referring to Peterson and other African Am ericans who exercised FMLA rights), and the allegation that white em ployees are subject to less severe punishm ent for substantially sim ilar conduct as the conduct which caused Peterson’s five and a half m onth suspension. With respect to the latter allegation, LIRR argues that in order to survive a m otion to dism iss Peterson is required to plead “comparators,” that is, specific instances where white em ployees were punished less severely for substantially sim ilar conduct. However, LIRR cites no support for such a rule and the Court is not aware that such a rule exists in this Circuit. The only support cited by LIRR in support of dism issal of Peterson’s Title VII claim is Mitchell v. Project Renewal, No. 0 9 Civ. 1958, 20 10 WL 481348 (S.D.N.Y. Feb. 1, 20 10 ), where the district court dism issed a pro se plaintiff’s race discrim ination claim because 7 the com plaint “provided a single conclusory allegation: ‘I believe because I was African Am erican, [plaintiff’s supervisor] felt like I wasn’t good enough to be a supervisor.” Id. at *3. Peterson’s com plaint does m ore than allege a baseless belief that he was a victim of race discrim ination. It alleges that Dorsi referred to Plaintiff as, “you people,” which Peterson interpreted as a com m ent against African Am erican em ployees who exercised FMLA leave. It also alleges disparate discipline between the punishm ent m eted out to Peterson and the punishm ent regularly im posed on sim ilarly-situated white em ployees.2 The allegations, which the Court accepts as true to the extent they are not legal conclusions, sufficiently provide LIRR with notice of Peterson’s claim that he was punished m ore severely than white coworkers in like circum stances, in part because he exercised rights under FMLA and in part because he is African Am erican. That is all Peterson is required to do at this stage an d therefore LIRR’s motion m ust be denied. See, e.g., Washington v. Coney Island Hosp., No. 0 4-40 96, 20 0 6 WL 3337513, at *6 (E.D.N.Y. Oct. 31, 20 0 6) (denying m otion to dism iss where plaintiff alleged “exam ples and relevant dates of the alleged discrim ination she encountered”). CONCLUSION 2 LIRR com plains that that Peterson has failed to plead “even one incident of alleged disparate discipline with particularity,” Reply at 4, but nowhere explains why such particularity is required. Cf. Fed. R. Civ. P. 9(b)-(c) (requiring a party to allege with particularity fraud, m istake or denials that a condition precedent has occurred or been perform ed). 8 For the foregoing reasons, the Court denies defendant’s m otion to dism iss the com plaint for failure to state a claim . SO ORD ERED . Dated: Brooklyn, New York J une 30 , 20 10 / s/ I. Leo Glasser United States Senior District J udge Co p ie s o f th e fo re go in g m e m o ran d u m an d o rd e r w e re e le ctro n ically s e n t to : Co u n s e l fo r Plain tiff: J ason L. Abelove Law Offices of J ason Abelove 666 Old Country Road Suite 30 4 Garden City, NY 11530 Co u n s e l fo r D e fe n d an t: Priscilla Lundin MTA Long Island Rail Road Legal Departm ent J am aica Station Mail Code 1143 J am aica, NY 11435 9
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