Golf v. New York City Department of Finance et al, No. 1:2013cv02865 - Document 23 (S.D.N.Y. 2014)
Court Description: OPINION. Based on the conclusions set forth in this Opinion, the City Defendants' motion to dismiss is granted. The Complaint is dismissed with leave to replead in 20 days. It is so ordered. re: 11 MOTION to Dismiss the complaint filed by New York City Department of Finance. (Signed by Judge Robert W. Sweet on 4/23/2014) (rjm)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------x MABEL MARIE GOLF, Plaintiff, 13 Civ. 2865 (RWS) - against OPINION NEW YORK CITY DEPARTMENT OF FINANCE, NEW YORK STATE DIVISION OF HUMAN RIGHTS, Defendants. ---------- ----- ---------X A P PEA RAN C E S: 11 ,,).J-'-.j\ . ¢ ::., ... , , \ 1 \-Fi.f'1 !" ,~i::: n 1'" 1 ... ··,···J,,·,L·!··l \ ~ r-:: l Ii PRO SE MABEL MARIE GOLF 87-50 167th Street, Apt. #6M Jamaica, NY 11432 -:J !":,-:; .;.~.: :;- ~-~:~: ;~;:-r=-===== 'i r~ r: .~-~~(':, !;, "\ TT,-1 .,. u, .""".ll"'_fi'\l,,,ALLY FILED rvy" 1;. I ~~'~~i,~ 311 ~11E I ATTORNEYS FOR CITY DEFENDANT MICHAEL A. CARDOZO CORPORATION COUNSEL OF THE CITY OF NEW YORK 100 Church Street New York, NY 10007 By: Benjamin F. Tracy, Esq. J Sweet, D.J. Defendants New York City Department of Finance and New York (collectively pursuant to Division State the "Defendants" Federal Rules of or "City Civil below, (the "Complaint"). City Defendants' ("SDHR" ) Rights Defendants") Procedure pro se plaintiff Mabel Marie Golf's Complaint Human of 12 (b) ("DOF") has to moved dismiss ("Golf" or the "Plaintiff") Based on the conclusions set forth motion is granted, and the Plaintiff is granted leave to replead within 20 days. Prior Proceedings The Complaint alleges retire from her position at resul t of asserted disability that she the verified was harassed race, sex complaint and forced and in with to DOF manager in the retire retaliation 2006 and to Plaintiff retire On April 6, SDHR as for a that 2012, opposing such was 1 as a to disability Plaintiff filed alleged of 2011 to previously that her she was disability, discrimination Ex. A, at 2). sexually harassed in her 2011, forced has due result (Tracy Decl., she was was DOF on September 1, forced (the "SDHR Proceeding"). also alleged that Plaintiff discrimination. discrimination in other fora. a that Plaintiff sleep by a retaliated against and that "she was deni promotions and salary increases sex and race." (Id. 2012, the at 12). rector of the of In a determination dated July 18, SDHR's Office of Sexual Harassment issues found no probable cause to believe that the DOF engaged in any PIa of the iff's Det unlawful After complaint in complaint ion") . was discriminatory the SDHR practices in Proceeding "SDHR (Id.) . the SDHR forwarded Opportunity Commission received to the Plaintiff's United ("EEOC"). the Employment 2013, the EEOC rd to PIa iff's s Act of 1964 I and the Americans with Di 1 22, On Janua claims under Title VII of the C complaint, States issued a Dismissal and Notice of Rights in VI I") set ("Title s I Act of 1990 ("ADA"), commenced special as codified, 42 U .S.C. §§ 12112 12117. On November 28, proceeding in the York County, 1180 Legal Finance, In a (See decision "Opinion"), SDHR, Department, Index a Court of the State of New York, against DOF, "NY Action"). ntiff 2012, No. dat the Hono and Plaintiff's union, CWA Local ing the I Ex. id., B, at 402479/2012 June Ie New 3; (N. Y. 7, 2 Golf Sup. 2013 1een A. SDHR Determination v. Ct. (the N.Y.C. June "NY 3, (the Dep't of 2013)). Opinion" or Rakower denied the petition and dismissed the proceeding was time-barred on the that the petition se Plaintiff failed to bring the proceeding wi thin sixty days of service of the order of SDHR, as required by Law 22 NYCRR § 202.57(a) (Tracy Decl., Ex. B, petition were t ly, taken 1 had a and imate York Executive record demonstrated that business reason evaluations found Plaintiff mentally un of her job. New 298. because all actions two cal s to perform the at 4). PI of § The Opinion held that even if at 4). the New York ntiff filed the Complaint in the Southern on instant motion April 26, on November 2013. 27, City 2013. Defendants strict fi Briefing was the submitted, and the matter was marked fully submitted on January 22, 2014. Allegations of the Complaint R. Civ. Because this is a motion to dismiss under P. 12(b) (6), many of assumes to be true, Inc. v. Ct. 2499, 12 (b) (6) motion L. to lowing & Ed. Rights, 2d dismiss with any motion to dismiss facts, Ltd., 551 U.S. 179 (2007) a 10 (b) r which the Complaint. are drawn Makar Issues 168 the § 308, ("[F]aced action, s Court See Tellabs, 322, wi courts 127 S. a Rule must, as ilure to plead a claim on which 3 relief can complaint be as granted, all true."). Other ual facts are allegations drawn in the from matters of public record or attached to the Complaint as exhibits of which this Court takes judicial notice. See Chambers v. Inc., 282 F.3d 147, 153 (2d Cir. 2002) to dismiss can consider: to pleadings; the complaint; (4 ) taken; (2) (3) of plaintiff relied v. documents matters which in of bringing 106 F. had j cial action); 2d notice possession; knowledge t Supp. intiff attached plaintiff referred iff's plaintiff Meriwether, that which pIa Wa rner r (court resolving a motion documents to whi documents documents Ltd. (1) Time 540, and be and upon Lakonia 543 may (5 ) which Management (S.D.N.Y. (court may also properly consider any document att 2000) to complaint as an exhibit or incorporated in it by reference, 1 as matters of public record of which it can take as judicial notice) . iff PIa Associate with t A, at 1). lateness and a is (SDHR Determination, DOF. In 2011, was Plaintiff subsequently Office to discuss this issue. the DOF lateness were had the a refer (Id. result 4 of to at 2). r Administrative Tracy Declo, pattern the of DOF Ex. excessive Advocate's When interviewed by Plaintiff sentat Advocate's issues Principal former stated co-workers that coming the into her bedroom at night and shaking her bed, sleep. on Bas (Id.). ce Law was medically fit to On March Azariah Eshkenazi interview, for a Office referred Plainti New York Civil Se this 2011, DOF Advocate's pursuant to termine whether Pla to rform her DOF dut 30, the cal evaluation, 72, § which interrupted her Plaintiff (Id.). was examined by Doctor ("Dr. Eshkenazi"), a Diplomate of the American Board of Psychiatry and Neurology and an Assistant Pro Psychiat at Plaintiff Mount Sinai School to be mentally unfit at 2; (Id. began Compl., Ex. to of perform her 72. § Tracy Decl., Ex. A, at 2). On May 25, was the fice ("OATH") and the Pla "to undergo iff of 2011, Dr. determined that second Dr. zi Esh persecution Pla Eshkenazi she found and was that visual iff voluntarily reti 2011, it a at DOF. DOF rial Trials law and Hearings ordered evaluation rform her duties. re-examined to per Plaintiff hallucinations. as 5 of to confirm On (Id.). II aintiff rm her suf ng ("ALJ") judge medical whether or not she was fit to Y 3, duties found (SDHR Determination, Administrat administrat a who aintiff on an involuntary leave of absence under Civil Service Law at Medic ssor of Based on this assessment, 3). process of placing he iff and again .} . duties. from ions (Compl. , ember 1, 2011. Ex. of 3) ¢ (SDHR Determination, Tracy Decl., Ex. A, at 2). The Complaint American with alleges sabili t s involuntary leave without Act the reasonable accommodations. against the SDHR ba Plaintiff alleges that Defendants ("ADA") violated when she was the placed on DOF seeking to provide her with The Complaint further brings claims on their handling of the SDHR Proceeding. that the charges she brought in the SDHR Proceeding were dismissed without a discussion of the results of the investigation. Plaintiff further seeks compensatory damages because she "may a Whistle Blower [sic]." (Compl. at 7). Plaintiff alleges that she was served with a notice of ril 8, involuntary leave on r tardiness Plaintiff's workers to work. pattern using their of which came as a 2011, at lateness was "paranormal e 3). due powers to result of Complaint at least mischeviously alleges two co [sic]" which caused irregular sleep patterns with Plaintiff and "might have caused lateness to work." neurologist, (Id.) . Plaintiff has visited a who took an MRI and EEG scan of Plaintiff's brain. No abnormalities were found in the tests. The Applicable Standard 6 (Id., Exs. 4, 5). On a motion to dismiss pursuant to Rule 12 (b) (6), factual ions all ferences all is whether are not the a claimant 37 8 (2 d favor of plaintiff is ," 37 5 , in the 12 F.3d 1170, 1174 whether the claims F . 3d drawn ar Corp., Polar Mol issue in the complaint are accepted as will entitled to 1 9 95 ) r.1993). to v. (qu 0 tin g Town euer U.S. 232, 236, 94 S. Ct. 1683, 40 L. Ed. 2d 90 To survive "a complaint must 12 (b) (6), accepted as true, on its face.'" 1937, 1949, T'v'lOmbly, their to ss conta 1, 2d 868 (2009) 544, 570, 550 U . S. the at line 570. Ct. as true allegation.'" a legal Iqbal, 129 from Though U.S. at 555). 7 at 678, 167 L. facts conceivable the conclusion S.Ct. 416 Rule matter, that is plausible 662, 1955, 129 S. Ct. 2d 929 to plausible. accept FF the it is "'not bound to couched 1950 Ed. v. to "nudge [ Court must factual allegations of a complaint as true, accept f 56 (quoting Bell Atl. Corp. Plaintiffs must allege suf across to factual 556 U.S. 127 S. Rhodes, pursuant to rel v. en, (1974)). suf 'state a cla 173 L. Ed. claims Twombly, motion Ash 550 U.S. (2007) ) . to a but support Da v. v. "'The il ultimately Inc. and Mills offer Villager Pond, Ci r . true, pleader. (2d all as (quoting a factual Twombly, 550 's Claims Are Ba by the Doct cata and Collateral Es Res Pursuant lusion, "a to the final doctrine judgment of on res the or judicata, s me of an action s the parties or their privies from relitigating issues were or could have been raised in that action." 449 U.S. McCurry, 90, 94 look to "whether the on a same both claims, second were Tech., Corp., 275, 706 285 ff t facts series 1260 to 1983}). establish the affirmative defense of res judicata, those 2) in asserted raised in the previous ty the with action [the subsequent p act involved intiffJi were, the "a or 3) could to rty must plainti ff [ and United Thus, show that 1) the previous action involved an adjudicat meri ts i the 't of N.Y.C. (citing NLRB v. (2d Cir. of to essential v. Monahan (2d Cir. 2000) F.2d 1254, or same evidence is whether sent in the first. 214 F. Corrs., and subsequent action, transaction transactions is at issue, whether support v. In determining whether or not (1980). a prior judgment has preclusive ef courts Allen the have on the or claims been, prior action." "In considering preclusive effect of a state court judgment on a subsequent ral action," a court must "consult 8 the preclusion issued." laws of Nestor v. the Pratt state which of action are grounded on ctual under a different theory of recovery." grouping,' even is a Riverhead sion that as dismissal ly judicata purposes); (2d r. Wang v. smissal limi tat ions a has of a a for 367, run is 828 on See 369 70 state court on decis F. 2d at the a ermination previously filed that on v. a SDHR for res 828 F.2d 104, state court as untimely); (2d ground the 2010) of merits sive effect to a 1007 Cir. review the of Hanrahan (2d City of Peekskill, 96 A. D. 3d 1005, claim brought purposes judicata. sian that was dismis Wang, of is F.3d (giving prec ew of a SDHR is Kirkland, merits Kirkland v. 1987) claim t 592 Home, unt later smissal on statute of limitations doctrine of res Nursing (accepting the on smissal application of if a In New York State, grounds also (2d Cir. same gravamen or are part of the same 110 71 was Under New York law, res judicata applies "if both causes 2006) . 110. judgment 466 F.3d 65, Whitney, & the ' t 2012) t see ("The statute the me s for of res judicata purposes."). intiff a camp int in the SDHR Proceeding alleging that she was subject to sexual harassment on account of her race disability, and cIa and sex, as that she was 9 well as for her alleged rced into retirement as a product of that Decl., Ex. A., evidence to scrimination. at 1). the (SDHR SDHR in support of her (Id. review the SDHR Determination. less. found (NY but the SDHR Plaintiff then State Supreme Court to SDHR The NY Action affirmed Plaintiff's Opinion, claims, at 2-3). commenced the NY Action in the New Yo and Tracy Plaintiff had the opportunity to present dismissed Plaintiff's complaint. Determination, Determination, Tracy claims both Ex. Decl., untimely B). and Plaintiff litigated the precise claims at issue, disability discrimination relating to employment, in this action before both the SDHR and the New York Supreme Court. pursuant to Given such, the Complaint is ba doctrine of res j cata from relitigating these claims. The doctrine of estoppel or claims in collateral issue t Complaint are estoppel. preclusion, also barred by doctr "refers to of the the collateral ef of a judgment in foreclosing reli tigation of a matter that has been Ii tigated and decided." Educ., doctr 465 U.S. 75, 77 Migra n.1 v. Wa rren (1984). Ci ty Sch. Under of collateral estoppel applies when: issue was actually I rais in a previous proceeding; federal law, of the identical " (1) (2) st. Bd. the issue was igated and decided in the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; 10 and (4) valid the resolution of and Rachlin v. final judgment state court a the merits." federal court must give preclusive ef to a (2d ( 2 d Ci r . 1999). judgment where "the material in the first action, fair opportunity to 1 issue 300 Parker Blauvelt v. S in the second action necessa ly F.3d Volunteer issue 11 and in the earlier action." 271 256, .t'~re is ided and and the plaintiff had a igate the Whi tman, v. Downs, applying 613 54 r. v. larly, App'x 52, identical to an issue which was raised, Lafleur Austin Flaher 199 F . 3d 607, New York law, on 2008); 270 F. & Martin, La n g, issue was necessary to support a (2d Cir. 93 Co., 2002) N.Y.2d (citing 343, 349 (1999)). A party who sought state court review of a no probable finding by SDHR t is barred from itigating his discrimination and retaliation claims in federal court as he has fully and fairly litigated that Corp., 456 U.S. 218 dgs., F. 461, App'x. court affirmat would preclude Lewis v. 485 97, of the ral at *9-15 Ltd. Inc., Brands, (1982); 98 liti ion Corp., (S.D.N.Y. 08 CV 3431, see Kremer v. Yan (2d Cir. [SDHR's] Health and Hosps. LEXIS 77668, aim. Koo 2007) v. ("New Constr. Dep't York of state finding of no probable cause based on 11 Civ. June 3, the 0099, 2013) 2009 U.S. 11 Yam Chem. st. same facts"); 2013 U.S. (same); Dist. Wilson v. LEXIS 37576, at ~~~-.... ~~~--------------------------- *2 ( S . D. N . Y. Ap r . 1 7, 2009 ) SDHR finding affords a litigate his claims cause finding. discrimination court review of a llowing a no probable 456 U.S. at 485. Kremer, discrimination on State aintiff a full and fair opportunity to of Plaintiff (same) . had previously the basis raised the of her disability issue fore of both the Plaintiff had the SDHR and the New York State Supreme Court. opportunity to fully and fairly litigation this identical issue in those Plaintiff's prior litigation Complaint are all based on the same subjected to discrimination Consequently, the Complaint lateral estoppel and on t is aims: basis barred must be and the aintiff was that of by her disabil the dismissed instant doctrine against of the Defendants. Complaint Fails To State A Claim Which Relief Can Be Granted Plaintiff has claimed violations of the ADA, which maKes it illegal for a "covered entity" to "discriminate against a qualifi job individual on the basis of disability in regard to application procedures, discharge of employees, the hiring, employee compensation, 12 advancement, or job training, and other terms, U.S.C. conditions, 12112 (a) . § discrimination and To under pri leges establish the ADA, "a defendant is covered by the ADA; a the ADA; essential (3) functions accommodation; employment dis (2) (4) provide is an not and Hosps. Corp., Al though facie the claim plausible. 9163, adverse perceived 18 (2d Cir. at the pleading of employment a are Idlisan 2013 U.S. an or of allegations the 16, case elements rs from reasonab suffered App'x that rform without F. what (1) the meaning disability prima 12 Civ. or 387 of show to his required, outline plaintiff's of omitted). a qualified with 42 disability ility with plaintiff v. citation aim that plaintiff suf was job, that because establishing render the Whitehead discrimination case and (internal stage, plaintiff of action lity." 2010) that employment." plaintiff must or is regarded as suffering from a dis of of v. prima facie necessary N.Y.C. to Health Dist. LEXIS 163151, at *12-13 (S.D.N.Y. Nov. 15, 2013). A requires person wi employer (3) with essential claim that a a for reasonable plaintiff accommodation plead that: '" (1) under ADA [p] laintiff disability under the meaning of the ADA; covered by the reasonable functions statute had notice is (2) a an of his disability; accommodation, plaintiff could rform the of the issue; job at 13 and (4) the employer has refused to make such Consumer Prods. Mfg., accommodations.'" 583 F. 3d 92, Graves v. Finch Pruyn & Co., Plaintiff has 97 McBride (2d Cir. 2009) or failed her that employment action. BIC (quoting 457 F.3d 181, 184 (2d Cir. 2006)). to sufficiently plead was either disabled wi thin the meaning of the ADA, 12102, v. voluntary In addition, retirement that 42 an was she u. s. C. § adverse Plaintiff does not plead that she was qualified to perform the essential functions of her job with DOF. Although the provided psychiatric doctor who stated Plaintiff "is responsibilities" Complaint capable (Compl., Ex. of includes treatment fulfilling a to letter from Plaintiff her full a that time job 5), the letter does not establish the basis as to how the doctor came to this conclusion or if the doctor knew the qualities necessary to perform the functions of Plaintiff's former job. Plaintiff suffered prosecution and visual hallucinations. several accommodations for from delusions of The letter does suggest Plaintiff at her work, such as that Plaintiff should be allowed to start work at 10:30 AM two times a week for at least the next three months, take frequent 5-10 minute breaks during the day and stay off work for one day every two weeks in the next three months. specify as to how the (Id.) . accommodations The letter does not would help Plaintiff's symptoms in a way that would allow her to perform the essential 14 - - - - - - - _.... funct of her former job. explanat s rate occasions. his own consulted Plaintiff's eva ions, Dr. the his ing any the zi on kenazi Dr. Plaintiff (See zi found the as well After id.). to or her perform knee n (Opp., physical at Eshkenazi's nothing suggests that G any such, ead allegations Dr. both (Id.) . 1-2), but such as given the (Compl., ex. zi's two Plaintiff has kenazi tests, examination Esh as aintiff unfit to perform was improperly diagnosed by Dr. failure inadequate. of 3). Esh ition, regardless of accommodat thoroughness of Dr. 3), Ex. psychiatrist. Esh iff contends s to (Compl., evaluation ies of her due by Dr. Plaintiff was conducted PIa fails to provi as well. Moreover, two The Compla ions were failed to ficiently would allow an inference that she was fit to perform her duties at the DOF, with or without accommodation. City Defendants failed to state a Defendants propose states that furt claim for this grounds a Whistle Blower on the Complaint for [sic]" contend that rst Amendment argument and the Defendants interpret be r Plaintiff retaliation. basis lie that has The Plaintiff federal law, aintiff's comment that she "may in 15 the "ReI f" section of Complaint to refer to a possible First Amendment retaliation aim. '" [T] establish a 0 plaintiffs must prove that: rst Amendment (1) retaliation claim, they engaged in constitutionally protected speech because they spoke as citizens on a matter of publ ic concern; and (3) the (2) speech they suffered an adverse employment action; was employment decision. '" 80 (2d Cir. 2012) a 'motivating D'Olimpio v. factor' Crisa (quoting Skehan v. in 462 the adverse 79, of Mamaroneck, Vill. App'x. 465 F. F.3d 96, 106 (2d Cir. 2006)). makes Plainti made was a cause for no allegation an adverse that employment any statement action. she Moreover, Plaintiff has not alleged that any statements she made touches upon a matter of public The concern. statements leges only pertain to a personal grievance; purpose unable can be to make inferred out any from her element of no broader public statements. a case Plaintiff for Plaintiff is First Amendment retaliation. 16 -----------------~ .. -~-- .. Conclusions Based Defendants' on motion the to conclusions dismiss dismissed with leave to reple is set above, The the Complaint in 20 It is so ordered. New York, NY April 2014 f.J ' / 18 City is
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