Magnotti v. Crossroads Healthcare Management, LLC et al, No. 1:2014cv06679 - Document 18 (E.D.N.Y. 2015)
Court Description: MEMORANDUM & ORDER granting in part and denying in part 13 Motion to Dismiss 10 Amended Complaint for Failure to State a Claim; denying as moot 17 Motion to Strike 16 Letter. Plaintiff is given leave to file a Second Amended Complaint that abides by the rulings set forth herein. Ordered by Judge I. Leo Glasser on 9/3/2015. (Carey, Charles)
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Magnotti v. Crossroads Healthcare Management, LLC et al Doc. 18 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x LOUIS MAGNOTTI, Plaintiff, MEMORAN D U M & ORD ER - against 14-CV-6679 (ILG) (RML) CROSSROADS HEALTHCARE MANAGEMENT, LLC, et al., Defendants. ------------------------------------------------------x GLASSER, Senior United States District J udge: Plaintiff Louis Magnotti brings this action against defendants Crossroads Healthcare Managem ent, LLC (“Crossroads”), ProScript Pharm acy Managem ent, LLC (“ProScript”), Michael DeBartolom e, Patrick Paolucci, Barry Marzigliano, and several unknown com panies and individuals. At the heart of plaintiff’s claim s are two allegations of unlawful behavior: first, defendants refused to perm it him to return to work on a full-tim e basis after he underwent spinal surgery, and second, after he resigned in protest of this decision, defendants denied him m oney to which he was entitled under a profit-sharing agreem ent between the parties. These denials, plaintiff claim s, violated the Am ericans with Disabilities Act (“ADA”), 42 U.S.C. § 1210 1, et seq.; the New York State Hum an Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 , et seq.; the New York City Hum an Rights Law (“NYCHRL”), N.Y.C. Adm in. Code § 8-10 1, et seq., the whistleblower provision of the New York Labor Law (“NYLL”), N.Y. Lab. Law § 740 (2)(c); and com m on law. Defendants now m ove to dism iss plaintiff’s Am ended Com plaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the m otion is GRANTED in part and DENIED in 1 Dockets.Justia.com part. Plaintiff is given leave to file a Second Am ended Com plaint that abides by the rulings set forth herein. BACKGROU N D Unless otherwise noted, the following facts are drawn from plaintiff’s Am ended Com plaint (Dkt. No. 10 ) and its attachm ents, and are accepted as true for the purposes of deciding this m otion. ProScript is a “closed-door” pharm acy for union m em bers. Crossroads is a healthcare m anagem ent com pany that services health plans for union m em bers and their fam ilies. Crossroads is the m anaging partner of ProScript, and the two com panies operate out of the sam e office in Staten Island. At all relevant tim es, DeBartolom e was the president and m anaging m em ber of ProScript as well as the president and m anaging m em ber of Crossroads; Paolucci was an officer and managing m em ber of ProScript as well as an officer of Crossroads; and Marzigliano was the chief financial officer of Crossroads as well as an officer and m em ber of ProScript. Plaintiff is a licensed New York State pharm acist. In Novem ber of 20 0 4, he began working part-tim e as ProScript’s supervising pharm acist. In 20 0 5, he assum ed a full-tim e schedule to accom m odate ProScript’s growth. He was paid as a salaried em ployee. In the sum m er of 20 0 6, DeBartolom e, with the knowledge and consent of the other defendants, invited plaintiff to join in an agreem ent to share in ProScript’s profits. Under this agreem ent, DeBartolom e said, plaintiff would receive distributions of 15% of ProScript’s profits for the rest of his life, even if he no longer worked for the pharm acy. Plaintiff, Marzigliano and DeBartolom e (in his capacity as president of Crossroads) signed ProScript’s “Operating Agreem ent” on Decem ber 15, 20 0 6. That agreem ent provided for two types of m em bership: “Class I” m em bers, who were entitled 2 to 10 0 votes on com pany affairs as a class, and “Class II” m em bers, who were entitled to zero votes. Plaintiff and Marzigliano became Class II m em bers of ProScript. The sole Class I m em ber, and thus the de facto holder of all voting power, was Crossroads. The agreem ent entitled plaintiff to distributions of 15% of ProScript’s net profits “[b]efore a m em ber’s withdrawal and before the winding up of the Com pany,” subject to the caveat that “[t]he Com pany m ay not m ake any distribution that will im pair [its] ability . . . to pay its debts and obligations as they m ature.” Am . Com pl., Ex. 2, Art. 3.12. From Decem ber of 20 0 6 until Decem ber of 20 13, plaintiff received distributions from ProScript in accordance with the agreem ent. In April of 20 13, plaintiff’s ability to walk began to deteriorate, a fact noticed by DeBartolom e, Paolucci, and Marzigliano. Plaintiff was initially diagnosed with a lower back problem , referred to an orthopedic surgeon and treated with physical therapy two to three tim es a week. Defendants were aware of plaintiff’s diagnosis and ongoing treatm ent. In August of 20 13, with his condition worsening, plaintiff went to see a chiropractor who ordered a m agnetic resonance im aging (“MRI”) exam that plaintiff underwent in Septem ber of 20 13. That MRI revealed com pression on plaintiff’s spinal cord and bone spurs around his spinal colum n near his neck. Plaintiff returned to his orthopedic surgeon, who recom m ended he undergo surgery to rem ove the bone spurs, fuse several of his cervical and thoracic vertebrae together, and insert rods into his spine to prevent paralysis. After seeking a second opinion which confirm ed this course of treatm ent, plaintiff requested six to eight weeks of m edical leave which defendants approved on the basis of necessity. Defendants hired Hank Buncek, another pharm acist, to fill in for plaintiff tem porarily. 3 Plaintiff began his m edical leave on Septem ber 19, 20 13 and underwent surgery to rem ove the bone spurs and fuse his vertebrae on Septem ber 26, 20 13. He rem ained in inpatient rehabilitation until Novem ber 1, 20 13, and, upon his discharge, continued with a course of in-hom e therapy until Decem ber 10 , 20 13. Throughout this period of tim e, plaintiff com m unicated repeatedly with pharm acy technicians at ProScript to address questions Buncek left unanswered. He also spoke with DeBartolome and Paolucci to update them on his recovery. On Decem ber 30 , 20 13, plaintiff’s orthopedic surgeon cleared him to return to work without lim itations. Though plaintiff still experiences back problem s, has difficulty walking or standing, and requires the assistance of a cane, he is capable of perform ing his prior job as it does not require him to stand or walk for prolonged periods of tim e. In early J anuary of 20 14, plaintiff inform ed DeBartolom e that he was ready to return to work full-tim e. DeBartolom e refused to perm it plaintiff to return full-tim e but instead allowed him to work only two or three days a week, with Buncek working when plaintiff did not. Later that m onth, plaintiff again requested to return to work full-tim e, and was inform ed by DeBartolom e that he could resum e a full schedule in March of 20 14. After defendants term inated two pharm acy technicians for their poor perform ance (which plaintiff attributes to Buncek’s supervisory negligence), plaintiff again requested to resum e working full-tim e on February 3, 20 14. DeBartolom e responded by saying “Hold off on that. We have to talk.” The next day, February 4, 20 14, DeBartolom e, Paolucci and Marzigliano called plaintiff at hom e. DeBartolom e inform ed plaintiff that he would be working a three-day week for the foreseeable future. Plaintiff objected, noting that this schedule would violate a New York regulation requiring supervising pharm acists to work full-tim e. 4 DeBartolom e, Paolucci and Marzigliano responded that the decision was final. Plaintiff wrote a letter to DeBartolom e and Paolucci that sam e day, stating that, as a result of the “insulting and degrading conference call,” he was resigning his position as supervising pharm acist, effective February 18, 20 14. He specifically noted, however, that he would “rem ain a m em ber of the [ProScript] LLC and assist in that capacity as necessary.” Am . Com pl., Ex. 3. On February 7, 20 14, plaintiff em ailed DeBartolom e and Paolucci, again inform ing them that they were violating New York’s pharm acy law by operating without a full-tim e supervising pharm acist. Paolucci’s response was that Buncek would com m ence working full-tim e on February 10 , 20 14. Plaintiff replied, asking “what [he] had done during his recovery that ha[d] chan ged [his] status” with defendants. Id., Ex. 4. Neither DeBartolom e nor Paolucci responded. By letter dated February 7, 20 14, the sam e day as the em ail correspondence, DeBartolom e, in his capacity as president of Crossroads, confirm ed receipt of plaintiff’s letter of resignation and stated that February 18, 20 14 “shall m ark the end of our business relationship together.” Id., Ex. 5. In a separate letter that sam e day, DeBartolom e, in his capacity as ProScript’s president and m anaging m em ber, announced to the m em bership of ProScript (including plaintiff) that he was deferring distributions of any excess cash flow from the com pany in order to “establish reserves for paym ent of the Com pany’s expenses, debt paym ents, capital im provem ents and the like.” Id., Ex. 6. Plaintiff wrote to DeBartolom e requesting ProScript’s records and profit/ loss statem ents for 20 13 and 20 14, but received no response. Plaintiff has not received distributions of ProScript’s profits since Decem ber of 20 13. 5 On August 26, 20 14, plaintiff filed a claim with the Equal Em ploym ent Opportunity Com m ission (“EEOC”), alleging that he was discrim inated against on grounds of disability and in retaliation for his com plaints. Magnotti Aff., Dkt. No. 14-1, Ex. A at 2.1 On the EEOC claim form , plaintiff m arked a box indicating that he “ha[d] a disability,” but left blank another box indicating “[n]o disability but the organization treats m e as if I am disabled.” Id. at 3. On Novem ber 6, 20 14, the EEOC issued a rightto-sue letter to plaintiff. Plaintiff com m enced this action on Novem ber 13, 20 14. Dkt. No. 1. On February 27, 20 15, defendants m oved to dism iss the original com plaint. Dkt. No. 8. In response, plaintiff filed an Am ended Com plaint on March 24, 20 15, and defendants withdrew their m otion on April 9, 20 15. Dkt. Nos. 10 -11. Defendants filed a new m otion to dism iss on May 4, 20 15, plaintiff opposed it on J une 5, 20 15, defendant replied on J une 19, 20 15, and plaintiff subm itted a proposed sur-reply letter for the Court’s approval on J une 29, 20 15, which defendants m oved to strike on J uly 1, 20 15.2 Dkt. Nos. 13-17. LEGAL STAN D ARD To survive a m otion to dism iss under Federal Rule of Civil Procedure 12(b)(6), a com plaint m ust contain “sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atl. Corp. v. Twom bly, 550 U.S. 544, 570 (20 0 7)). Although detailed factual 1 Defendants urge the Court to disregard plaintiff’s affidavit subm itted in opposition to their m otion to dism iss. In ruling on a m otion to dism iss for failure to state a claim , a district court m ay consider only the factual allegations contained in the pleadings, documents attached to the pleadings or incorporated by reference, docum ents a plaintiff knew of and relied on in drafting the com plaint, and m atters of public record of which judicial notice m ay be taken. E.g., Cham bers v. Tim e Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 20 0 2); Wong v. CKX, Inc., 890 F. Supp. 2d 411, 415 (S.D.N.Y. 20 12). Thus, while the factual allegations contained in plaintiff’s affidavit are not properly before the Court, the EEOC questionnaire attached to that affidavit, which plaintiff relied upon in drafting the Am ended Com plaint, m ay be considered here. 2 As the outcom e of defendants’ m otion was unaffected by plaintiff’s sur-reply, the m otion to strike is DENIED as m oot. 6 allegations are not necessary, m ere legal conclusions, “a form ulaic recitation of the elem ents of a cause of action,” or “naked assertions” by the plaintiff will not suffice. Id. (internal quotation m arks and citations om itted). The Court m ust accept as true all well-pleaded factual allegations in the com plaint and draw all reasonable inferences in the plaintiff’s favor. Matson v. Bd. of Educ. of the City Sch. Dist. of N.Y., 631 F.3d 57, 63 (2d Cir. 20 11). D ISCU SSION I. AD A Claim s Congress passed the ADA in order to “provide a clear and com prehensive national m andate for the elim ination of discrim ination against individuals with disabilities.” 42 U.S.C. § 1210 1(b)(1). To that end, the Act prohibits, inter alia, em ploym ent discrim ination against individuals with actual or perceived disabilities (including refusal to provide reasonable accom m odations to disabled em ployees who request them ) and retaliation against em ployees who invoke their rights under the Act. See Vale v. Great Neck Water Pollution Control Dist., --- F. Supp. 3d ---, 20 15 WL 24860 3, at *4-10 (E.D.N.Y. J an. 20 , 20 15). Despite plaintiff’s num erous allegations of direct discrim ination, Counts I and II of the Am ended Com plaint, the sole Counts to invoke the ADA, state only that “Defendants have violated the ADA[] by failing to accom m odate Plaintiff and/ or retaliating against Plaintiff for engaging in protected activity.” Am . Com pl. ¶ 133, see also id. ¶ 137. Defendants argue these claim s m ust be dism issed because (1) plaintiff failed to exhaust his adm inistrative rem edies prior to filing this suit, (2) plaintiff was not an em ployee but rather a co-owner of ProScript, (3), defendants cannot be considered em ployers as the ADA defines the term , and (4) plaintiff suffered from no actual or 7 perceived disability. While defendants’ argum ents are largely m eritless, Count I’s failure-to-accom m odate claim is in no way supported by the factual allegations in the Am ended Com plaint, which warrants that Count’s dism issal. A. Exh au s tio n o f Ad m in is trative Re m e d ie s Ordinarily, an individual seeking to bring an em ploym ent discrim ination or retaliation suit under the ADA m ust first file a claim of em ploym ent discrim ination with the EEOC within 180 days after the discrim inatory acts. See McInerney v. Rensselaer Polytechnic Inst., 50 5 F.3d 135, 138 (2d Cir. 20 0 7) (per curiam ). Defendants erroneously contend that failure to exhaust adm inistrative rem edies is a jurisdictional bar. In the em ploym ent discrim ination context, exhaustion is not jurisdictional. See Fernandez v. Chertoff, 471 F.3d 45, 58 (2d Cir. 20 0 6) (quoting Boos v. Runyon, 20 1 F.3d 178, 182 (2d Cir. 20 0 0 )). Thus, plaintiff is “not required to dem onstrate at the pleading stage that his claim s were adm inistratively exhausted.” DiPetto v. U.S. Postal Serv., 383 F. App’x 10 2, 10 4 (2d Cir. 20 10 ) (sum m ary order) (citing J ones v. Bock, 549 U.S. 199, 216 (20 0 7)).3 Defendants also claim that plaintiff’s failure to check a box on his claim indicating that he had no disability “but the organization treats m e as if I am disabled” should preclude him from raising any claim as to discrim ination on the grounds of a perceived, rather than actual, disability. This argum ent is frivolous. Plaintiff correctly believes that he is within the definition of an individual with a disability under the ADA, for reasons discussed infra, which would m ake checking a box indicating he had no 3 As plaintiff is being granted leave to amend, however, he m ay well wish to attach his full EEOC claim to his Second Am ended Complaint in the interest of com pleteness. If he does not attach the full claim to his new pleading, and defendants believe it lends credence to their argum ents, they m ay subm it it in support of a renewed m otion to dism iss without risking the Court converting it into one for sum m ary judgm ent. See McKnight v. Dorm itory Auth. of State of N.Y., 995 F. Supp. 70 , 74-75 (N.D.N.Y. 1998). 8 disability not only unnecessary but incorrect. In any event, allegations that certain behavior constituted discrim ination on the basis of a perceived disability are reasonably related to allegations that the sam e behavior constituted discrim ination on the basis of an actual disability, thereby perm itting plaintiff to proceed on either theory. See, e.g., William s v. N.Y.C. Hous. Auth., 458 F.3d 67, 70 (2d Cir. 20 0 6); Deravin v. Kerik, 335 F.3d 195, 20 1 (2d Cir. 20 0 3). B. Plain tiff’s Statu s as an Em p lo ye e Defendants argue that the ProScript profit-sharing agreem ent effectively m akes plaintiff a partial owner of the com pany, not an em ployee. While plaintiff is a Class II m em ber of ProScript, “[t]he m ere fact that a person has a particular title . . . should not necessarily be used to determ ine whether he or she is an em ployee or a proprietor.” Clackam as Gastroenterology Assocs., P.C. v. Wells, 538 U.S. 440 , 450 (20 0 3). Rather, the Court m ust consider whether plaintiff “act[ed] independently and participate[d] in m anaging the organization, or whether [he] was subject to the organization’s control.”4 Id. at 449 (internal citation om itted). This fact-intensive inquiry typically focuses on six non-exhaustive factors: (1) whether the organization can hire and fire the individual or set the rules and regulations of his work, (2) whether (and the extent to which) the organization supervises the individual’s work, (3) whether the individual reports to som eone higher in the organization, (4) whether (and the extent to which) the individual is able to influence the organization, (5) whether the parties intended in 4 Clackam as and its progeny focus on shareholders in professional corporations (P.C.s) rather than m em bers of lim ited liability com panies (LLCs), but there is no reason to believe their broad guidance regarding how to draw distinctions between proprietors and em ployees who may have som e stake in a com pany would vary based on the corporate form . See, e.g., Foresta v. Centerlight Capital Mgmt., LLC, 379 F. App’x 44, 46 (2d Cir. 20 10 ) (sum m ary order) (applying Clackam as factors to an LLC m em ber); Pate v. Ponchartrain Partners, LLC, Civil Action No. 13-6366, 20 14 WL 2560 416, at *6 (E.D. La. J une 6, 20 14) (sam e, collecting cases). 9 written agreem ents or contracts for the individual to be an em ployee, and (6) whether the individual shares in the profits, losses, and liabilities of the organization. See, e.g., id. at 450 (quoting 2 EEOC Com pliance Manual § 60 5:0 0 0 9 (20 0 0 )); Echevarria v. Insight Med., P.C., 72 F. Supp. 3d 442, 457 n.10 (S.D.N.Y. 20 14). Applying those six factors to the allegations in the Am ended Com plaint, it is readily apparent that plaintiff has pleaded his status as an em ployee. Defendants, according to plaintiff, controlled all aspects of his work schedule and wages, required him to report to DeBartolom e and Paolucci, and denied him any sort of influence over ProScript by vesting all voting power in Crossroads. These facts, if true, would warrant finding plaintiff to be an em ployee rather than a proprietor, and defendants’ m otion to dism iss on grounds that plaintiff was a part owner of ProScript is accordingly denied. C. D e fe n d an ts ’ Statu s as Em p lo ye rs Defendants’ argum ent that ProScript and Crossroads cannot function as plaintiff’s joint em ployers is effectively a restatem ent of their m eritless argum ent regarding his em ploym ent status: because he was a part owner of ProScript, they claim , neither that LLC nor Crossroads could have been his em ployers. For the reasons set forth supra, that argum ent fails. While defendants also m ake perfunctory argum ents that plaintiff worked solely for ProScript, the Am ended Com plaint clearly alleges that ProScript and Crossroads, com panies with the sam e officers that operated out of the sam e Staten Island address, functioned as “separate legal entities” that “have chosen to handle certain aspects of their em ployer-em ployee relationships jointly,” thereby pleading joint em ploym ent. See Echevarria, 72 F. Supp. 3d at 459 (quoting Lim a v. Addeco, 634 F. Supp. 2d 394, 40 0 (S.D.N.Y. 20 0 9)). 10 Defendants also argue that DeBartolom e, Paolucci, and Marzigliano cannot be sued in their individual capacities under the ADA. They are correct that the em ploym ent discrim ination and retaliation provisions of the ADA do not ordinarily provide for individual liability. See, e.g., Spiegel v. Schulm ann, 60 4 F.3d 72, 79-80 (2d Cir. 20 10 ); Lane v. Maryhaven Ctr. of Hope, 944 F. Supp. 158, 160 -62 (E.D.N.Y. 1996). Plaintiff concedes that Marzigliano cannot be found individually liable, which warrants dism issal of the ADA claim s against him with prejudice, but argues that DeBartolom e and Paolucci exercised such control over Crossroads and ProScript that the com panies were little m ore than their alter egos. To state a claim for individual liability under the alter ego doctrine, a plaintiff m ust plead “(1) that the person exercises such dom inion and control with respect to the transaction attacked that the corporation had no separate will of its own; and (2) that the dom ination and control was used to com m it a fraud or wrong against the plaintiff which proxim ately caused [his] injuries.” Lane, 944 F. Supp. at 163 (internal citations om itted). Plaintiff has adequately pleaded an alter ego claim against DeBartolom e, but not Paolucci. The Am ended Com plaint identifies both m en as senior officers of Crossroads and ProScript, but notes that DeBartolom e was the president of both com panies and the one who unilaterally prohibited plaintiff from returning to work full-tim e after his surgery, with Paolucci m erely “com plicit” in the decision. See Am . Com pl. ¶¶ 9-12, 10 40 5. Paolucci’s role is described as vaguely supervisory, and the only direct action he is accused of taking is sending an em ail to plaintiff inform ing him that Buncek would begin working full-tim e in plaintiff’s stead. See id. ¶ 118. These allegations do not indicate dom inion and control over ProScript and Crossroads, and the ADA claim s against Paolucci are therefore dism issed with prejudice. 11 D . Plain tiff’s Actu al o r Pe rce ive d D is ability The ADA’s definition of a “disability” encom passes both “a physical or m ental im pairm ent that substantially lim its one or m ore m ajor life activities” and “being regarded as having such an im pairm ent.” See 42 U.S.C. § 1210 2(1). Major life activities include, but are not lim ited to, walking and standing. See id. § 1210 2(2)(A). According to the EEOC’s im plem enting regulations for the ADA, determ ining whether a lim itation is substantial requires a com parison to “m ost people in the general population,” though the standard is not m eant to be dem anding, and “[a]n im pairm ent need not prevent, or significantly or severely restrict, the individual from perform ing a m ajor life activity in order to be considered substantially lim iting.” See 29 C.F.R. § 1630 .2(j)(1)(ii). Here, plaintiff has alleged that, even after his surgery, he “experienced back problem s” and “had difficulty walking or standing for prolonged periods of tim e.” Am . Com pl. ¶ 82. He continued to suffer from this disability as of the date of his Am ended Com plaint, over a year after surgery, and “still requires the assistance of a cane to walk.” Id. ¶ 83. Defendants, citing to out-of-circuit decisions or cases resolved via sum m ary judgm ent m otions, argue that such lim itations cannot constitute a disability as the ADA defines the term , particularly because plaintiff’s doctor cleared him to return to work “without lim itation.” Defendants are m istaken. The fact that plaintiff could work without lim itation did m ean he could stand or walk without lim itation, and if, as plaintiff alleges, defendants discrim inated against him because his ability to walk or stand was substantially lim ited as com pared with the general population, even though that im pairm ent had no bearing on his ability to do his job, then defendants have violated the ADA. 12 Even assum ing arguendo that plaintiff was not disabled, his allegations that defendants treated him as such are sufficient for the ADA’s purposes. Defendants argue that plaintiff’s perceived disability was “transitory and m inor,” but since his im pairm ent lasted for longer than six m onths it was not transitory, and, at this stage in the litigation, the Court cannot discredit plaintiff’s assertion that it was anything but m inor. See 29 C.F.R. § 1630 .15(f). Plaintiff has adequately pleaded he was disabled or regarded as such, and defendants’ argum ents to the contrary are without m erit. E. Re as o n able Acco m m o d atio n ( Co u n t I) After spending over a hundred paragraphs m aking allegations of generalized discrim ination against plaintiff on grounds of his actual or perceived disability, the Am ended Com plaint veers dram atically from its narrative and alleges in Count I only that “Defendants have violated the ADA[] by failing to accom m odate Plaintiff and/ or retaliating against Plaintiff for engaging in protected activity.” See Am . Com pl. ¶ 133. To state a claim for failure to reasonably accom m odate a disability, a com plaint m ust allege that “(1) plaintiff is a person with a disability under the m eaning of the ADA; (2) an em ployer covered by the statute had notice of his disability; (3) with reasonable accom m odation, plaintiff could perform the essential functions of the job at issue; and (4) the em ployer has refused to m ake such accom m odations.” Rodal v. Anesthesia Grp. of Onondaga, P.C., 369 F.3d 113, 118 (2d Cir. 20 0 4). In general, “it is the responsibility of the individual with a disability to inform the em ployer that an accom m odation is needed.” Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 184 (2d Cir. 20 0 6) (internal citation omitted). There are no allegations anywhere in the Am ended Com plaint that plaintiff required a reasonable accom m odation in order to perform his job, let alone asked defendants for such an accom m odation. To the contrary, he presented them with 13 a doctor’s note indicating he could return to work without lim itation, and noted on his EEOC questionnaire that he did not request any accom m odation from them , reasonable or otherwise. See Am . Com pl. ¶ 81; Magnotti Aff., Ex. A at 3. Thus, plaintiff has not stated a reasonable accom m odation claim . Since the rem ainder of Count I alleges retaliation, which is duplicative of the claim s in Count II, it is dism issed in its entirety.5 F. Re taliatio n ( Co u n t II) Beyond the disputes addressed supra, defendants do not argue that plaintiff has failed to state a retaliation claim , nor could they. In order to state a claim for retaliation, plaintiff m ust allege that (1) he engaged in an activity protected by the ADA, (2) his em ployer was aware of this activity, (3) his em ployer took adverse em ploym ent action against him , and (4) a causal connection between the alleged adverse action and the protected activity (which m ay be dem onstrated as part of a prim a facie case sim ply by tem poral proxim ity between the protected activity and the adverse action). See Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 20 0 2). Plaintiff claims that he com plained to defendants of his reduction in hours following his surgery and was, shortly thereafter, inform ed that this reduction would be perm anent rather than tem porary. In other words, he has sufficiently alleged “discrim inatorily-m otivated dim inution of [his] duties” by defendants after speaking out about his situation, and his retaliation claim s m ay proceed. See Preda v. Nissho Iwai Am . Corp., 128 F.3d 789, 791 (2d Cir. 1997). II. State & Co m m o n Law Claim s 5 As defendants did not raise this specific defect in m oving to dism iss the Am ended Com plaint, dism issal of Count I is without prejudice as against all defendants other than Paolucci and Marzigliano, whose personal involvem ent plaintiff has not alleged. See Willey v. Kirkpatrick, --- F.3d ---, No. 13-699, 20 15 WL 50 59377, at *8-9 (2d Cir. Aug. 28, 20 15) (citing Fed R. Civ. P. 56(f)). He m ay m ove to further am end his pleading if he reasonably believes he m ay state a failure-to-accom m odate claim . 14 The rem aining ten counts of the Am ended Com plaint focus on state and com m on law claim s.6 Defendants have m oved to dism iss all of them , and the Court addresses their argum ents in turn. A. N YSH RL & N YCH RL ( Co u n ts III & IV) The NYSHRL’s protections for disabled workers are generally viewed as coextensive with the ADA, while the NYCHRL’s protections are greater still. See Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 277-78 (2d Cir. 20 0 9) (internal citations om itted). Plaintiff alleges both a discrim ination and retaliation claim under the state and local hum an rights laws. Since, for the reasons discussed supra, plaintiff has stated a retaliation claim under the ADA, he has also stated one under the NYSHRL and NYCHRL. To state a discrim ination claim under the NYSHRL, as with the ADA, a plaintiff m ust allege that (1) he was an individual with a disability under the m eaning of the statute, (2) his em ployer had notice of his disability, (3) he could perform the essential functions of the job with or without reasonable accom m odation, and (4) he suffered an adverse em ploym ent action because of his disability. See Micari v. Trans World Airlines, Inc., 43 F. Supp. 2d 275, 279 (E.D.N.Y. 1999). Defendants once again claim that plaintiff was not disabled, but as discussed supra, that argum ent is m eritless. Since plaintiff has stated a disability discrim ination claim under the NYSHRL, it follows logically that he has stated one under the NYCHRL as well. 6 Although the Court has dism issed all federal claim s against Paolucci and Marzigliano, it m ay exercise supplem ental jurisdiction over the rem aining claim s against them because they “derive from a com m on nucleus of operative fact” with the undism issed federal claim against Crossroads, ProScript, and DeBartolom e, m aking them “part of the sam e case or controversy.” See Achtm an v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 335 (2d Cir. 20 0 6) (quoting, inter alia, 28 U.S.C. § 1367(a)). 15 DeBartolom e, Paolucci, and Marzigliano also argue that they cannot be held individually liable under the NYSHRL or NYCHRL. Plaintiff concedes that Marzigliano cannot be held liable, which warrants dism issal of Counts III and IV against him with prejudice, but correctly notes that the state and local statutes allow em ployees to sue individuals for alleged discrim ination if they have “an ownership interest or the power to do m ore than carry out personnel decisions m ade by others” at the com pany where the discrim ination occurred. See N.Y. State Div. of Hum an Rights v. ABS Elecs., Inc., 958 N.Y.S.2d 50 2, 50 4 (App. Div. 20 13) (citing Patrowich v. Chem . Bank, 63 N.Y.2d 541, 542 (1984)). Plaintiff has sufficiently alleged that DeBartolom e and Paolucci, as m anagers of both Crossroads and ProScript, had such power, and their m otion to dism iss the state and local hum an rights law claim s against them is therefore denied. B. N YLL W h is tle blo w e r Claim ( Co u n t V) Section 740 (2)(c) of the NYLL prohibits em ployers from retaliating against any em ployee who “objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety.” Defendants allege that plaintiff’s claim under the provision is both m eritless and an election of rem edies that waives the rem ainder of the claim s in the Am ended Com plaint. 1. Me rits Defendants argue that plaintiff had already suffered all the adverse actions he com plains of when he objected to their proposal to have no supervising pharm acist working full-tim e at ProScript, which violated New York State Board of Regents Rule 29.7(a)(10 ) governing professional conduct. Defendants are incorrect. It is clear from the face of the Am ended Com plaint that the retaliatory conduct plaintiff complains of 16 with regard to Count V is not defendants’ decision to perm anently relegate him to parttim e status, but DeBartolom e’s decision to halt distribution of ProScript’s profits after plaintiff com plained of the Rule 29.7(a)(10 ) violation. The failure to em ploy a full-tim e supervising pharm acist, however, does not, on its face, present a “substantial and specific danger to the public health or safety,” and the Am ended Com plaint m akes no attem pt to argue otherwise. Indeed, the rule requiring that a supervising pharm acist work full-tim e notes that failure to do so constitutes no m ore than “unprofessional conduct.” Furtherm ore, there is no allegation in the Am ended Com plaint of any specific danger the public faced due to ProScript’s schedule for its pharm acists. Section 740 (2)(c)’s lim itations are “consistently and strictly enforced,” and since plaintiff alleges no inherent danger or actual adverse consequences from defendants’ actions, he has not stated a whistleblower claim under the NYLL. See Frank v. Walgreens Co., No. 0 9-CV-955, 20 11 WL 4465210 , at *5-6 (E.D.N.Y. Sept. 26, 20 11) (internal citations om itted) (noting that sim ilar alleged violations of pharm acists’ rules of professional conduct did not indicate a danger to public health or safety). 2. W aive r Although NYLL § 740 (7) indicates that the whistleblower law is not intended to dim inish an em ployee’s rights under “any other law or regulation,” it goes on to state that com m encing an action pursuant to Section 740 “shall be deem ed a waiver” of any other rights and rem edies available under any other “contract, collective bargaining agreem ent, law, rule or regulation or under the com m on law,” subject to a lim ited exception not relevant here. This conflicting language has evoked “a variety of views” from courts that interpret it, and neither New York’s Court of Appeals nor the Second 17 Circuit has clarified the m atter. See Barker v. Peconic Landing at Southold, Inc., 885 F. Supp. 2d 564, 568 (E.D.N.Y. 20 12). Certain state courts have broadly interpreted the waiver clause to require dism issal of any causes of action arising out of the sam e conduct that underpinned the Section 740 claim , but m any federal courts, including this Court, have harm onized it with the broad protective language that precedes it, construing it to waive only other legal rights and rem edies that protect against the sam e wrong that the whistleblower com plains of. See, e.g., id. at 569 (quoting Collette v. St. Luke’s Roosevelt Hosp., 132 F. Supp. 2d 256, 267 (S.D.N.Y. 20 0 1)); Reddington v. Staten Island Univ. Hosp., 373 F. Supp. 2d 177, 185-86 (E.D.N.Y. 20 0 5). Here, of the 11 other counts of the Am ended Com plaint, only Count XII, which alleges constructive discharge, even m entions the specific wrong Count V seeks to address, i.e., the alleged retaliation for bringing up the rule requiring supervising pharm acists to work full-tim e. The rem aining 10 counts are discrim ination claim s and contract disputes, brought pursuant to laws with entirely different protective purposes. The Court, therefore, will not deem plaintiff’s other causes of action, which seek to vindicate rights “com pletely separate from those sought to be protected by Section 740 ,” waived. See Barker, 885 F. Supp. 2d at 569. C. Bre ach o f Co n tract ( Co u n t VI) Defendants’ argum ent against the breach-of-contract claim in the Am ended Com plaint is prem ised on their NYLL waiver argum ent, and is m eritless for the reasons discussed supra. Nevertheless, the Am ended Com plaint m akes no reference to any actions by Paolucci or Marzigliano that constituted a breach of an express agreem ent they signed with plaintiff, and Count VI is dism issed as against them . Because the 18 Am ended Com plaint sufficiently alleges that DeBartolom e is the alter ego of Crossroads, however, plaintiff m ay continue to assert Count VI against him . D . Qu as i-Co n tract Cla im s ( Co u n ts VII, VIII, IX, & X) Counts VII (breach of im plied covenant of good faith and fair dealing), VIII (breach of im plied contract), IX (quantum m eruit) and X (unjust enrichm ent) of the Am ended Com plaint all seek equitable relief, but such relief is appropriate only in the absence of an express agreem ent. Plaintiff correctly notes that such claim s m ay be alleged in the alternative to a breach-of-contract claim if the parties dispute whether a contract’s provisions cover the subject m atter in question, but no such dispute exists here. Plaintiff alleges there is am biguity in the ProScript Operating Agreem ent’s provisions for profit-sharing after the departure of a m em ber from regular em ploym ent at ProScript, not any doubt as to whether the Operating Agreem ent established and governed that profit-sharing system . This is an issue of contractual interpretation, and since Counts VII through X seek “non-contractual, equitable rem edies that are inapplicable if there is an enforceable contract governing the subject m atter,” they are dism issed. See R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 60 (2d Cir. 1997). E. Frau d u le n t In d u ce m e n t ( Co u n t XI) Since Count XI of the Am ended Com plaint alleges that DeBartolom e intentionally com m itted fraud when he asked plaintiff to sign the Operating Agreem ent, it is subject to the heightened pleading standards that Federal Rule of Civil Procedure 9(b) im poses on fraud claim s.7 While that Rule perm its intent to be averred generally, 7 Defendants’ m otion focuses on N.Y. C.P.L.R. 30 16(b), which also im poses a specificity requirem ent on allegations of fraud m ade pursuant to New York law, but since Count XI does not even satisfy the arguably less stringent requirem ents of Rule 9(b) regarding intent, the Court need not address its viability under state law. See Soper v. Sim m ons Int’l, Ltd., 632 F. Supp. 244, 249 & n.8 (S.D.N.Y. 1986); DaPuzzo v. Reznick Fedder & Silverm an, 788 N.Y.S.2d 69, 70 -71 (App. Div. 20 0 5). 19 “plaintiffs are still required to plead the factual basis which gives rise to a ‘strong inference’ of fraudulent intent.” Wexner v. First Manhattan Co., 90 2 F.2d 169, 172 (2d Cir. 1990 ) (quoting Beck v. Mfrs. Hanover Trust Co., 820 F.2d 46, 50 (2d Cir. 1987)). A strong inference of fraudulent intent m ay be established “either (a) by alleging facts to show that defendants had both m otive and opportunity to com m it fraud, or (b) by alleging facts that constitute strong circum stantial evidence of conscious m isbehavior or recklessness.” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994). The Am ended Com plaint alleges no such facts. Plaintiff signed the Operating Agreem ent in 20 0 6 and received his share of ProScript’s profits without incident for years. Only after plaintiff’s surgery did defendants’ behavior towards him purportedly change, dem onstrating neither m otive nor opportunity to com m it fraud in 20 0 6, nor even circum stantial evidence suggesting m isbehavior or recklessness on defendants’ parts at that tim e. Count XI is dism issed accordingly. F. Co n s tru ctive D is ch arge ( Co u n t XII) Constructive discharge occurs when an em ployer “intentionally creates an intolerable work atm osphere that forces an em ployee to quit involuntarily. Working conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the em ployee’s shoes would have felt com pelled to resign.” Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 73 (2d Cir. 20 0 0 ) (citing Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 89 (2d Cir. 1996)). Plaintiff alleges that being forced to work in a situation where defendants were violating the Board of Regents’ rules regarding fulltim e supervising pharm acists forced him to leave ProScript. See Am . Com pl. ¶¶ 20 8-10 . Yet plaintiff’s own letter of resignation m akes no reference to this issue, citing only the phone call during which DeBartolom e inform ed plaintiff he could not return to work 20 full-tim e for the foreseeable future. See id., Ex. 3. Since his resignation was not based on the alleged violation of the rules of professional conduct for pharm acists, and this violation was ongoing well before his resignation, it follows logically that the failure to com ply with the Board of Regents’ rules did not create an intolerable working environm ent for him . Count XII is therefore dism issed. III. Jo h n D o e & XYZ Co rp o ratio n D e fe n d an ts Several unknown J ohn Doe and XYZ Corporation defendants are nam ed in the Am ended Com plaint’s caption, but not featured anywhere in its factual recitations beyond two boilerplate paragraphs indicating that they som ehow “have liability for the claim s set forth herein.” See Am . Com pl. ¶¶ 15-16. Since there is no indication whatsoever that these unknown individuals and/ or corporations participated in the activities described in the Am ended Com plaint, the claim s against them are dism issed. If specific additional parties and their roles in the wrongs plaintiff alleges are identified over the course of discovery, plaintiff m ay, of course, m ove to am end his com plaint. IV. Le ave to Am e n d Finally, plaintiff argues that, should any of his claim s be dism issed, he should be given leave to am end his com plaint again. Although leave to am end should be “freely given,” a court m ay deny it “for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 20 0 (2d Cir. 20 0 7) (citing Fom an v. Davis, 371 U.S. 178, 182 (1962)). Plaintiff has already am ended his com plaint once in the face of defendants’ earlier m otion to dism iss, which raised substantially the sam e issues as the present m otion, and he has not indicated either in the Am ended Com plaint or his opposition how a Second Am ended Com plaint would cure the defects described supra. Leave to replead the claim s 21 dism issed in this Mem orandum and Order is therefore denied, with the exception of Count I (ADA failure to accom m odate) as against Crossroads, ProScript, and DeBartolom e. See In re Eaton Vance Mut. Funds Fee Litig., 380 F. Supp. 2d 222, 242 (S.D.N.Y. 20 0 5) (denying leave to am end where plaintiffs were previously “provided notice of defects in the[ir] . . . Com plaint by the defendants and given the chance to am end [it]. . .”) Since it is clear from the Am ended Com plaint and the m otion papers that plaintiff was attem pting to bring a discrim ination claim under the ADA rather than a failure-to-accom m odate claim , however, leave to am end is granted for the lim ited purpose of properly pleading such a claim against Crossroads, ProScript, and DeBartolom e. CON CLU SION For the foregoing reasons, defendants’ m otion to dism iss is GRANTED to the following extent: - Count I (ADA failure to accom m odate) is dism issed with prejudice as against Paolucci and Marzigliano, and without prejudice as against all rem aining defendants. - Counts V (NYLL whistleblowing), VII (breach of im plied covenant of good faith and fair dealing), VIII (breach of im plied contract), IX (quantum m eruit), X (unjust enrichm ent), XI (fraudulent inducem ent), and XII (constructive discharge) are dism issed with prejudice as against all defendants. - Counts II (ADA retaliation) and VI (breach of contract) are dism issed with prejudice as against Paolucci and Marzigliano. 22 - Counts III (NYSHRL and NYCHRL discrim ination) and IV (NYSHRL and NYCHRL retaliation) are dism issed with prejudice as against Marzigliano, and he is therefore dism issed from this action. - All rem aining counts are dism issed without prejudice as against the J ohn Doe and XYZ Corporation defendants, and they are therefore dism issed from the action. In all other respects, defendants’ m otion is DENIED. Plaintiff is granted leave to file a Second Am ended Com plaint solely to add a claim of disability discrim ination under the ADA and rem ove those defendants and claim s that have been dism issed from this action no later than 14 days from the date of this decision. SO ORDERED. Dated: Brooklyn, New York Septem ber 3, 20 15 / s/ I. Leo Glasser Senior United States District J udge 23
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