Conkling v. Brookhaven Nat'l Laboratory, No. 2:2010cv04164 - Document 44 (E.D.N.Y. 2012)

Court Description: MEMORANDUM AND ORDER granting in part and denying in part 34 Motion to Dismiss. For the foregoing reasons, Defendant's motion to dismiss is GRANTED IN PART and DENIED IN PART, and Plaintiff's retaliation claims under Title VII and the ADEA are hereby DISMISSED. So Ordered by Judge Joanna Seybert on 6/12/12. C/ECF (Valle, Christine)

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Conkling v. Brookhaven Nat&#039;l Laboratory Doc. 44 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------X KATHERINE S. CONKLING, Plaintiff, MEMORANDUM & ORDER 10-CV-4164(JS)(WDW) -againstBROOKHAVEN SCIENCE ASSOCIATES, LLC, Defendant. ---------------------------------------X APPEARANCES For Plaintiff: Scott M. Mishkin, Esq. Kyle T. Pulis, Esq. Erik McKenna, Esq. Scott Michael Mishkin, P.C. One Suffolk Square, Suite 240 Islandia, NY 11749 For Defendant: Christopher A. Parlo, Esq. Melissa C. Rodriguez, Esq. Andriette A. Roberts, Esq. Morgan Lewis & Bockius LLP 101 Park Avenue New York, NY 10178 SEYBERT, District Judge: Presently pending before the Court is Defendant Brookhaven Science Associates, LLC’s motion to dismiss Plaintiff Katherine S. Conkling’s Second Amended Complaint (“SAC”). For the following reasons, Defendant’s motion is GRANTED IN PART and DENIED IN PART. BACKGROUND 1 Plaintiff was born on March 28, 1930 and is currently 1 The following facts are taken from the SAC and the documents referenced therein and are presumed to be true for the purposes of this Memorandum and Order. Dockets.Justia.com eighty-two years old. Ex. B. ¶ 1.) In (Rodriquez Aff. Ex. A ¶ 1; Pulis Decl. or around November 1959, Defendant hired Plaintiff as a Technical Specialist and, in or around October 1997, promoted her to Environmental Safety Coordinator for its medical department. remained in that representatives position from until Health (SAC ¶¶ 6-7.) February Defendant’s and Human 10, 2000, Resource She when Department informed her that she was being terminated with severance pay, effective February 29, 2000, “due to alleged health and safety problems which occurred in her Department.” (SAC ¶ 34.) Plaintiff asserts that these health and safety problems were fabricated by two of her supervisors, James Bullis and Nora Volkow, who regularly discriminated against her because of her age and gender. forty-year-old (SAC ¶ 35.) male who experience than Plaintiff. had Defendant replaced her with a fewer qualifications and less (SAC ¶ 39.) Shortly thereafter, however, Defendant rescinded her termination and, instead, demoted her to Technical Specialist and reduced her salary by $13,000 per year. Plaintiff asserts that she was (SAC ¶¶ 36-37.) reinstated because she “demonstrated that she was being treated differently due to her age and gender” (SAC ¶ 36), however the SAC does not state how or to whom treatment. Plaintiff “demonstrated” the alleged differential Plaintiff accepted the reinstatement/demotion on or 2 about March 1, 2000 and is currently employed by Defendant in that capacity. (SAC ¶¶ 37-38.) On August 1, 2010, Plaintiff filed an administrative charge (the “Charge”) with the New York State Division of Human Rights (“NYSDHR”) asserting that she was terminated and then demoted on account of her sex and age. 2 Pulis Decl. Ex. B.) (Rodriquez Aff. Ex. A; The NYSDHR transferred Plaintiff’s Charge to the Equal Employment Opportunity Commission (“EEOC”), which issued Plaintiff a Notice of Right to Sue on June 11, 2010. (Pulis Aff. Ex. C.) 2010. Plaintiff received the Notice on June 14, (Pl. Opp. 3, 6.) Plaintiff commenced this action pro se on September 10, 2010. (Docket Entry 1.) However, she failed to timely serve the Complaint, so on January 31, 2011, she requested an extension (Docket of time Entry Plaintiff’s 4.) request to serve and Magistrate (Docket file Judge Entry an amended William 5), and D. on complaint. Wall May granted 16, 2011, Plaintiff, now represented by counsel, served and filed a First Amended Complaint (Docket Entry 6). Defendant answered on July 18, 2011 (Docket Entry 22) but then consented to Plaintiff’s filing the SAC. 2 Defendant, in its moving papers, incorrectly asserts that the Charge was filed on August 10, 2010. 3 The SAC, filed on July 29, 2011, asserts claims against Defendant under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. arising out of her termination and demotion. 30.) (Docket Entry On September 29, 2011, Defendant filed both an Answer and a motion to dismiss 3 the SAC. (Docket Entries 33-37.) DISCUSSION Defendant moves to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted. However, by answering, Defendant waived its right to seek dismissal under Rule 12(b). See FED. R. CIV. P. 12(b) (“A motion asserting any of these defenses must be made before pleading if a responsive pleading is required.”). Rule 12(b)(6) “should judgment be on Nonetheless, the Second Circuit has held that motions construed the made by after the pleadings the close of the district court as a under Rule 12(c).” pleadings motion See Patel for v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). Thus, the Court will treat Defendant’s motion as one for judgment on the pleadings. 3 Defendant moves for “partial” dismissal yet appears to be seeking dismissal of the entire SAC. 4 I. Standard of Review under Rule 12(c) The standard for deciding a motion pursuant to Rule 12(c) “is identical to that failure to state a claim.” of a Rule 12(b)(6) motion for See id.; Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead sufficient factual allegations in the complaint to “state a claim [for] relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929, 949 (2007). A complaint does not need “detailed factual allegations,” but it demands “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. In addition, the facts pled in the complaint “must be enough to raise a right to relief above the speculative level.” Id. Determining whether a plaintiff has met her burden is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); accord Harris v. Mills, 572 F.3d 66, 72 (2d elements Cir. of 2009). a cause However, of “[t]hreadbare action, statements, do not suffice.” supported by recitals mere of the conclusory Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 5 In deciding a motion to dismiss, the Court is confined to “the allegations contained within the four corners of [the] complaint.” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998). any document documents This has been interpreted broadly to include attached to the Complaint, incorporated in the Complaint any by statements reference, or any document on which the Complaint heavily relies, and anything of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 152–53 (2d Cir. 2002) (citations omitted); Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991). II. Defendant’s Motion for Judgment on the Pleadings Defendant reads Plaintiff’s SAC to assert causes of action under Title VII and the ADEA for discrimination and retaliation. A. Title VII & ADEA Discrimination Claims Defendant argues that Plaintiff’s discrimination claims must be dismissed: (1) as time-barred and (2) for failing to plead an adverse employment action. The Court will address each argument in turn. 1. Statute of Limitations Employment discrimination claims under Title VII and the ADEA are considered timely if Plaintiff: (1) timely filed an administrative charge, (2) received a right-to-sue letter, 6 and (3) commenced suit right-to-sue letter. § 626(d). within ninety days of receiving the See 42 U.S.C. § 2000e-5(e), (f); 29 U.S.C. Defendant argues that Plaintiff’s Charge was not timely filed. “Discrimination claims under Title VII and the ADEA must ordinarily be ‘filed’ with the EEOC within 180 days of the date on which occurred.’” the ‘alleged unlawful employment practice Ford v. Bernard Fineson Dev. Ctr., 81 F.3d 304, 307 (2d Cir. 1996) (quoting 42 U.S.C. § 2000e-5(e)(1)); see also 29 U.S.C. § 626(d)(1). took place in a “However, if the alleged discrimination state or locality that has its own antidiscrimination laws and an agency to enforce those laws, then the time period for ‘fil[ing]’ claims with the EEOC is extended to 300 days.” Id. (alteration in original) (quoting 42 U.S.C. 2000e-5(e)(1); 29 U.S.C. §§ 626(d)(2), 633(b)). Thus, in New York, a plaintiff typically has 300 days after the alleged discriminatory act to file a charge with either the EEOC or the NYSDHR. Harris v. City of N.Y., 186 F.3d 243, 247 n.2 (2d Cir. 1999). Defendant argues that because it is a federal enclave, the 180-day, rather than applies. (Def. Mot. 3-4.) Defendant is a federal the 300-day, limitations period Plaintiff does not dispute that enclave but instead argues that notwithstanding its status as a federal enclave, the 300-day 7 limitations period still applies. (Pl. Opp. 5.) The Court need not decide the issue, however, because Plaintiff’s Charge was timely under either period. “It has long been settled that a claim of employment discrimination accrues for statute of limitations purposes on the date the employee learns of the employer’s discriminatory conduct.” Cir. Flaherty v. Metromail Corp., 235 F.3d 133, 137 (2d 2000). In the case of discriminatory discharge, the limitations period “starts running on the date when the employee receives a definite notice of the termination.” Miller v. Int’l Tele. & Tele. Corp., 755 F.2d 20, 23 (2d Cir. 1985). Here, Plaintiff received notice of her discharge on February 10, 2000 (SAC ¶ 34) and filed her Charge with the NYSDHR 4 172 days later on August 1, 2000 (Rodriquez Aff. Ex. A; Pulis Decl. Ex. B). As such, her claims for discrimination under Title VII and the ADEA are not time-barred. B. Adverse Employment Action To establish a prima facie case of gender discrimination under Title VII or age discrimination under the ADEA, Plaintiff must show that: 4 (1) she is a member of Pursuant to the Provisions of a “Work Sharing Agreement” between the NYSDHR and the EEOC, cross-filing with the agencies are deemed to have occurred whenever a New York complainant files with either agency. See Sundaram v. Brookaven Nat’l Labs., 424 F. Supp. 2d 545, 559 n.6 (E.D.N.Y. 2006); Govia v. Century 21, Inc., 140 F. Supp. 2d 323, 325 n.1 (S.D.N.Y. 2001). 8 a protected class, (2) she was qualified for the position, (3) she suffered an adverse employment action, and (4) the surrounding circumstances permit an inference of discrimination. See Leibowitz v. Cornell Univ., 584 F.3d 487, 498 (2d Cir. 2009). Defendant argues that Plaintiff failed to plead an adverse employment action because her termination was rescinded before it went into effect. (Def. Mot. 10 n.4; Def. Reply 7.) The Court disagrees. “A plaintiff sustains an adverse employment action if he or she endures a ‘materially adverse change’ in the terms and conditions of employment.” F.3d 636, adverse, 640 the (2d Cir. change Galabya v. N.Y.C. Bd. of Educ., 202 2000). must be To “more be considered disruptive materially a mere inconvenience or an alteration in job responsibilities.” Id. (internal quotation marks and citation omitted). than The Second Circuit has held that such a change “might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, [or] responsibilities.” significantly diminished material Id.; see also Hill v. Rayboy-Brauestein, 467 F. Supp. 2d 336, 351 (S.D.N.Y. 2006). So while a termination that is rescinded with no other adverse consequences does not constitute an adverse employment action, see, e.g., Butler v. Potter, No. 06-CV-3828, 2009 WL 804722, at *13 (E.D.N.Y. Mar. 9 26, 2009) (finding that an employee whose notice of termination was expunged and who suffered no other adverse consequences such as loss of time or payment did not suffer an adverse employment action); Cheshire v. Paulson, No. 04–CV–3884, 2007 WL 1703180, at *6 (E.D.N.Y. June 12, 2007) (finding that IRS’s proposed suspension and, later, termination did not constitute adverse employment actions as both were ultimately rescinded), that is not what happened here. Although Plaintiff’s termination was rescinded, she was not reinstated to her previous position or salary. Rather, Plaintiff was demoted with a $13,000 reduction in salary (SAC ¶¶ 36-37), and courts have consistently held that such a demotion constitutes an adverse employment action. See, e.g., Galabya, 202 F.3d at 640; Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008). Thus, the Court finds that Plaintiff has adequately pled an adverse employment action. Therefore, to the extent that Defendant’s motion seeks dismissal of Plaintiff’s discrimination claims, Defendant’s motion is DENIED. B. Retaliation under Title VII and the ADEA Defendant argues that Plaintiff’s retaliation claims must be dismissed because Plaintiff failed to exhaust administrative remedies prior to commencing this action. her Before addressing Defendant’s argument, the Court must note that the SAC does not appear to include 10 any cause of action for retaliation. It clearly lists two, and only two, claims: one for discrimination under Title VII (SAC ¶¶ 52-57) and one for discrimination under the ADEA (SAC ¶¶ 58-63). 5 Defendant seems to think that the SAC Nonetheless, as contains retaliation claims (and Plaintiff does not dispute that she asserted such claims), the Court will address Defendant’s exhaustion argument. Before bringing a claim under Title VII or the ADEA, a plaintiff must exhaust his or her administrative remedies by filing a claim with either the EEOC or the proper state or local agency. See Cornwell v. Robinson, 23 F.3d 694, 706 (2d Cir. 1994); Miller, 755 F.2d at 23-24. Thus, a district court only has jurisdiction to hear claims that were explicitly included in the administrative charge or which are “reasonably related” to the allegations in the charge. Butts v. N.Y.C. Dep’t of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superseded by statute on other grounds, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1071. In 5 the present case, Plaintiff’s While Plaintiff uses the word “retaliatory” to describe her demotion (SAC ¶ 37 (“On or about March 1, 2000, plaintiff accepted the retaliatory and discriminatory demoted position . . . .”)), to establish a prima facie claim of retaliation, a plaintiff must show: “(1) that she participated in a protected activity, (2) that she suffered an adverse employment action, and (3) that there was a causal connection between her engaging in the protected activity and the adverse employment action.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) (citing Kessler v. Westchester Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006)). Nowhere in her SAC does she assert that she participated in any “protected activity” prior to her termination/demotion. 11 Charge did not contain any allegations of retaliatory conduct, and Plaintiff does not dispute this. her retaliation claims are allegations in her Charge. A claim is Instead, she argues that “reasonably” related to the The Court disagrees. considered reasonably related where an “administrative complaint can be fairly read to encompass the claims ultimately pleaded in a civil action or to have placed the employer on notice that such Mathirampuzha, 548 F.3d at 77. Plaintiff’s claims in retaliation her Charge, claims the claims might be raised.” In order to determine whether are Court reasonably must related examine the to the factual allegations of discriminatory conduct contained in the Charge itself and determine “whether the complaint filed with the EEOC gave that agency ‘adequate notice to investigate discrimination on both bases.’” Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (quoting Deravin v. Kerik, 335 F.3d 195, 202 (2d Cir. situations 2003)). in which The Second claims Circuit has “reasonably recognized relate” to three conduct included in an EEOC charge: (1) where the claims in the civil action “would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination,” (2) where the civil claim alleges “retaliation by an employer against an employee for filing an EEOC charge,” and (3) where the claims “allege[] 12 further incidents of discrimination carried out in precisely the same manner alleged in the EEOC quotation charge.” marks and Butts, citation 990 F.2d at omitted). 1402-03 None are (internal applicable here. 1. Within the Scope of the EEOC Investigation Plaintiff’s Charge simply states that she was terminated (then reinstated and demoted) because of her gender and age. However, (Rodriquez Aff. Ex. A ¶ 10; Pulis Decl. Ex. B ¶ 10.) “[r]etaliation substantively claim.” distinct O’Hara v. is a from Mem’l theory [an of employment] Sloan-Kettering App'x. 69, 70-71 (2d Cir. 2001). liability that is discrimination Cancer Ctr., 27 F. Accordingly, a retaliation claim is not “reasonably related” to an administrative charge simply because the charge asserts a discrimination claim, see Shepheard v. City of N.Y., 577 F. Supp. 2d 669, 680 (S.D.N.Y. 2008) (“Where the EEOC charge alleges discrimination but not retaliation, the reasonable scope of the agency’s investigation cannot be expected to encompass allegations of retaliatory motive.”); Sussle v. Sirinia Prot. Sys. Corp., 269 F. Supp. 2d 285, 314 (S.D.N.Y. 2003) (collecting cases), or refers to the fact that plaintiff suffered some adverse employment action, see, e.g., Morris v. David Learner Assocs., 680 F. Supp. 2d 430, 437 (E.D.N.Y. 2010). Rather, for a retaliation claim to be “within the scope” of the administrative charge, the charge must 13 “put the agency on notice that [the plaintiff] had engaged in the type of retaliation protected claim.” activity O’Hara, 27 that F. is the App’x predicate at 70-71 to a (citing Fitzgerald v. Henderson, 251 F.3d 345, 366 (2d Cir. 2001)). Plaintiff’s Charge contains no allegations that would lead an investigator to inquire as to any allegedly retaliatory actions: alleged it does not state that she ever complained about the discriminatory treatment or engaged in any other protected activity under Title VII or the ADEA, nor does it contain any reference to a retaliatory motive. Accordingly, Plaintiff’s retaliation claims are not “within the scope” of the discrimination claims asserted in the Charge. 2. Retaliation for Filing EEOC Charge Plaintiff also argues that her retaliation claims are “reasonably related” to the discrimination claims in her Charge because “her complaint filed with the Eastern District alleges [Defendant]’s retaliation against plaintiff for filing a charge with the EEOC.” (Pl. Opp. 9.) While this is a correct statement of the law--retaliation for filing an EEOC charge is always deemed to be reasonably related to the allegations in the charge, see Butts, 990 F.2d at 1402, Plaintiff’s SAC is void of any allegations of discriminatory conduct subsequent to the filing of her Charge. that occurred The SAC asserts that she was demoted on March 1, 2000, and she filed her Charge on 14 August 1, 2000. The fact that Plaintiff remained in a demoted position with a lower salary after filing her Charge does not constitute a separate retaliatory act. See Gilliard v. N.Y. Public Library Sys., 597 F. Supp. 1069, 1077 (S.D.N.Y. 1974) (allegations that Plaintiff’s salary remained at lower level “d[id] not represent anything other than mere effects of prior violation”); Malarkey v. Texaco, Inc., 559 F. Supp. 117, 120 (S.D.N.Y. 1982) continue to reduced salary question is (“[W]hile feel the and whether employees effects job any of who that have demotion been in demoted terms opportunities, . . . ‘the present violation exists.’” of critical (quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S. Ct. 1885, 52 L. Ed. 2d 431 (1980)). 6 3. Further Incidents of Discrimination Carried Out in Precisely the Same Manner Lastly, Plaintiff asserts that the SAC “alleges further acts of retaliation, such as her continued demotion, financial loss, and subsequent fabricated performance issues, that were carried out in precisely the same manner alleged in the EEOC charge.” (Pl. Opp. 9.) 6 However, for the reasons Plaintiff, in her opposition brief, also asserts that her supervisors continued to fabricate performance issues after she filed her Charge. However, this assertion appears nowhere in the SAC, and “[n]ew claims not specifically asserted in the complaint may not be considered by courts in deciding a motion to dismiss.” Lerner v. Forster, 240 F. Supp. 2d 233, 241 (E.D.N.Y. 2003) (citation omitted). 15 articulated loss and above, Plaintiff’s subsequent fabricated continued demotion, performance financial issues are not actionable. Accordingly, the Court finds that Plaintiff did not exhaust her administrative remedies for her Title VII and ADEA retaliation claims, and to the extent that Defendant’s motion seeks dismissal of those claims, it is GRANTED. CONCLUSION For the foregoing reasons, Defendant’s motion to dismiss is GRANTED IN PART and DENIED IN PART, and Plaintiff’s retaliation claims under Title VII and the ADEA are hereby DISMISSED. SO ORDERED. /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: June 12, 2012 Central Islip, New York 16

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