Ingram v. Nassau Health Care Corporation

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK For Online Publication Only

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BILLY INGRAM,

Plaintiff,

-against- MEMORANDUM AND ORDER

17-CV-05556 (JMA)(SIL)

NASSAU HEALTH CARE CORPORATION,

Defendant.

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FILED

APPEARANCES:

CLERK

Billy Ingram 2/13/2020 4:  42 pm

Pro se Plaintiff U.S. DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

Brian Joseph Clark LONG ISLAND OFFICE

Benjamin E. Stockman

Venable LLP

1270 Avenue of the Americas, 24th floor

New York, NY 10020

Attorneys for Defendant

AZRACK, United States District Judge:

In an order dated March 25, 2019 (the “Order”), the Court dismissed Plaintiff’s Complaint

for failure to state any plausible claims, but gave Plaintiff an opportunity to file an amended

complaint. On July 17, 2019, Plaintiff filed a one-page Amended Complaint with five exhibits,

including two medical records concerning his heart condition. (Amended Complaint, ECF No.

37.) Defendant filed a motion to dismiss the Amended Complaint under Federal Rule of Civil

Procedure 12(b)(6) for failure to state a claim. For the reasons stated below, the Court grants

Defendant’s motion and dismisses the Amended Complaint with prejudice.

I. DISCUSSION

A. Plaintiff’s Disability Discrimination and Retaliation Claims

The Order set out the relevant legal standards that govern motions to dismiss, pro se

litigants, and claims for disability discrimination and retaliation. It is unnecessary to repeat them

here.

The Order found that Plaintiff’s original Complaint failed to plausibly allege a disability.

In an attempt to remedy this deficiency, Plaintiff submitted two medical records concerning his

heart condition. It is unnecessary to determine whether these records are sufficient to allege a

disability under either federal or state law, because, even assuming that Plaintiff has plausibly

alleged a disability,1 he has still failed to plausibly allege causation—namely that he suffered an

adverse action because of his disability. Similarly, Plaintiff’s retaliation claim also fails to

plausibly allege causation.

With respect to the causation element of both claims, in the Amended Complaint, Plaintiff

again denies using profanity or being “confrontational” with another employee. Thus, Plaintiff

disputes the alleged misconduct reported to Defendant that Defendant asserts resulted in his

termination. Additionally, the Amended Complaint alleges that Defendant terminated Plaintiff in

April 2016 because it wanted to prevent him from obtaining union protections and full-time

benefits. Plaintiff alleges that because he had a pre-existing heart condition, Defendant viewed

him as a liability.

None of the allegations in the Amended Complaint, or Plaintiff’s other filings, are

sufficient to plausibly plead the causation element necessary to allege a viable claim of disability

1 Under the Americans with Disabilities Act, a “disability” means “a physical or mental impairment that substantially

limits one or more major life activities of such individual.” 42 U.S.C. § 12102(1). “[A] major life activity also

includes the operation of a major bodily function, including but not limited to . . . circulatory . . . functions.” 42

U.S.C. § 12102.

discrimination or retaliation. The fact that Plaintiff denies the alleged misconduct reported to

Defendant is insufficient, given all of the circumstances here, to plausibly allege disability

discrimination or retaliation. In February 2016, Defendant promoted Plaintiff to a full-time public

safety officer. At the time, Defendant was already aware of both Plaintiff’s disability and his New

York State Division of Human Rights (“NYSDHR”) complaint, which he had filed in March

2015—more than a year before he was terminated in April 2016. And, Plaintiff’s pleadings do not

allege that any specific discriminatory or retaliatory comments were made about his heart

condition or protected activity.2 These points render implausible Plaintiff’s conclusory allegations

that his termination was a result of disability discrimination and retaliation.

Although the Amended Complaint alleges that Defendant terminated Plaintiff because he

was on the verge of obtaining full-time benefits and that his heart condition made him a liability,

none of the supporting allegations render plausible these conclusory allegations of disability

discrimination. Not only was Defendant aware of Plaintiff’s disability when it promoted him to a

full-time employee, but nothing in the pleadings suggests that defendant viewed his heart condition

as a liability. As noted in the Order, before the New York State Division of Human Rights,

Plaintiff conceded that Defendant allowed him to take one month off in February 2014 to deal with

his heart condition and that he returned to work in March 2014 without any restrictions. (Order at

10.) And, nothing in Plaintiff’s papers indicates that between March 2014, and his termination in

April 2016, Plaintiff was absent due to his heart condition or was required to undergo anything

2 In a letter dated June 20, 2018 that Plaintiff submitted after the briefing on the motion to dismiss was completed,

Plaintiff asserted that “I was told to drop the Human Rights Department case in order to be given full time.” (ECF

No. 33.) The June 20, 2018 letter did not indicate who made this alleged comment or when it was made. The Amended

Complaint does not mention this alleged comment and, in fact, says nothing about alleged retaliation for filing the

NYSDHR complaint. Rather, the Amended Complaint stresses that defendant terminated Plaintiff in order to prevent

him from receiving union protections and full-time benefits.

other than routine treatment.3 Additionally, the Amended Complaint does not plausibly suggest

that the possibility Plaintiff might incur some medical costs in the future to treat his heart condition

would be a financial concern to Defendant. If Plaintiff had not been fired and had obtained full-

time health benefits, Defendant presumably would have paid a fixed premium for Plaintiff’s full-

time health benefits that would not have changed based on the particular amount of health care

used by Plaintiff—nothing in the Amended Complaint suggests otherwise. See Ashcroft v. Iqbal,

556 U.S. 662, 679 (2009) (“[D]etermining whether a complaint states a plausible claim is context

specific, requiring the reviewing court to draw on its experience and common sense.”)

Thus, for the reasons stated above, the Amended Complaint fails to allege plausible claims

for disability discrimination and retaliation. Accordingly, those claims are dismissed with

prejudice.

B. The Remaining Claims Addressed in the Order

In the Order, the Court also dismissed Plaintiff’s hostile work environment claim, New

York City Human Rights Law claim, state law Aiding and Abetting claim, and Negligent Hiring,

Retention, and Supervision claim. Nothing in the Amended Complaint cures the deficiencies in

those claims. Accordingly, to the extent the Amended Complaint seeks to reallege any such

claims, such claims are again dismissed with prejudice.

3 Notably, one of the exhibits attached to the complaint is a medical record from September 5, 2018, which indicates

that Plaintiff reported no cardiac complaints, underwent an echocardiogram and was directed to “follow up in one

year” with another echocardiogram. Although this medical record is from a visit more than two years after Plaintiff’s

termination, it suggests that Plaintiff’s heart condition was also under control between March 2014 and April 2016

when he worked for Defendant and further shows that Plaintiff’s allegations that Defendant viewed him as a liability

because of his heart condition are implausible.

C. New Claims Raised in the Amended Complaint

1. First Amendment Claim

The Amended Complaint alleges, for the first time, that Plaintiff’s First Amendment rights

were violated.

Where a public employee is alleging retaliation for the exercise of First Amendment free

speech rights, he must plausibly allege that: “(1) the speech at issue was made as a citizen on

matters of public concern rather than as an employee on matters of personal interest; (2) he or she

suffered an adverse employment action; and (3) “the speech was at least a substantial or motivating

factor in the [adverse employment action].” Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir. 2003)

(citations and internal marks omitted).

The Amended Complaint does not allege that Plaintiff engaged in any speech on a matter

of public concern. Accordingly, Plaintiff’s First Amendment claim fails and is dismissed with

prejudice.

2. Slander and Defamation

The Amended Complaint also alleges a slander claim (and possibly also a defamation

claim) stemming from the allegedly false allegations against Plaintiff that led to his termination.

Because the Court has already dismissed all of Plaintiff’s federal claims, the Court could

decline to exercise supplemental jurisdiction over his state law slander and defamation claims (and

his other state law claims that the Court dismissed in the Order). However, because all of those

state law claims are plainly meritless, the Court finds that it is appropriate to exercise supplemental

jurisdiction over those claims and to dismiss them on the merits rather than subject Defendant to

additional frivolous litigation in state court.

Defendant argues that the Amended Complaint has not, for various reasons, plausibly

alleged slander or defamation claims.

It is unnecessary to reach the arguments raised by Defendant because Plaintiff’s slander

and defamation claims are clearly subject to dismissal on other grounds. Although not raised by

Defendant, any claim for slander or defamation based on statements made prior to August 10, 2016

is time-barred. The statute of limitations for slander and defamation claims under New York law

is one year. N.Y. C.P.L.R. 215(3). Plaintiff was terminated in April 2016 and did not file the

instant lawsuit until August 10, 2017. (See ECF No. 1.) Thus, any slander or defamation claims

concerning the alleged false statements that led to Plaintiff’s termination are clearly time-barred.

The only events referenced in Plaintiff’s pleadings that occurred after August 10, 2016 involve an

administrative proceeding concerning Plaintiff’s unemployment benefits. Plaintiff, however, does

not squarely allege any slander or defamation claims arising out of that proceeding. Moreover,

any claims concerning allegedly slanderous or defamatory statements made in that proceeding are

barred by the principle of absolute immunity. See Jean-Joseph v. Walgreens, Inc., No. CV-10-

4635, 2011 WL 5025266, at *3 (E.D.N.Y. Oct. 21, 2011) (collecting cases and explaining that “the

principle of absolute immunity in [the context of statements to the unemployment insurance board]

is well-established”).

II. CONCLUSION

For the reasons set forth above, Defendant’s motion to dismiss the Amended Complaint is

granted in its entirety and Plaintiff’s claims are dismissed with prejudice. The Court certifies

pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good

faith and therefore in forma pauperis status is denied for the purpose of any appeal. See Coppedge

v. United States, 369 U.S. 438, 444–45 (1962).

The Clerk of the Court is directed to close this case and to send a copy of this Order to

Plaintiff.

SO ORDERED.

Dated: February 13, 2019

Central Islip, New York

/s/ (JMA)

Joan M. Azrack

United States District Judge