Apuzza v. NYU Langone Long Island

UNITED STATES DISTRICT COURT July 11, 2023

EASTERN DISTRICT OF NEW YORK U.S. DISTRICT COURT

--------------------------------------------------------------------X EA STERN  DISTRICT OF NEW YORK

LONG ISLAND OFFICE

ADRIENNE APUZZA,

Plaintiff,

ORDER

-against- 22-CV-7519 (JMA)(JMW)

NYU LANGONE LONG ISLAND,

Defendant,

--------------------------------------------------------------------X

A P P E A R A N C E S:

Adrienne Apuzza

6 Yorkshire Road

New Hyde Park, NY 11040

Proceeding Pro se

Amy Joy Traub

Baker Hostetler LLP

45 Rockefeller Plaza

New York, NY 10111

Attorney for Defendant

Carrie A. Valdez

Baker & Hostetler LLP

127 Public Square, Ste 2000

Cleveland, OH 44114

Attorney for Defendant

WICKS, Magistrate Judge:

Before the Court is Defendant NYU Langone Long Island’s (“NYU Langone”) motion to

stay discovery pending a decision on its anticipated motion to dismiss Plaintiff’s Amended

Complaint. (DE 40.) Plaintiff Adrienne Apuzza, proceeding pro se, resists the motion. (DE 41.)

For the reasons that follow, Defendant’s motion to stay discovery is granted.

I. BACKGROUND

Plaintiff brings this action against Defendant for violations of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101, et seq., stemming from alleged discrimination, and

retaliation based on disability. (DE 25-1 at 1.) Plaintiff asserts the following violations of the

ADA: (a) disability discrimination, (b) retaliation, and (c) non-job related medical inquiries,

tests, and treatments -- all related to Defendant’s Covid-19 policy. (See DE 25-1.) Defendant’s

pre-motion letter reflects that it seeks to dismiss Plaintiff’s Amended Complaint in its entirety for

failure to exhaust administrative remedies, as well as failure to state a claim under the ADA.

(DE 27.)

Until September 2021, Plaintiff was employed as a healthcare worker by Defendant NYU

Langone. (DE 17 at 1.) Defendant terminated Plaintiff for failing to adhere to its mandatory

Covid-19 policy applicable to all employees, which was promulgated pursuant to a New York

State Department of Health regulation requiring the same. (Id.) Plaintiff was given until

September 29, 2021 to provide proof of vaccination or apply for a medical exemption. (Id.)

Plaintiff objected to Defendant’s policy and was thereafter terminated for failing to comply. (Id.)

Plaintiff filed the initial complaint on December 9, 2022. (DE 1.) Defendant was served

on January 13, 2023. (DE 6.) The parties stipulated to extending Defendant’s time to answer,

move against, or otherwise respond to the complaint to on or before February 24, 2023. (DE 8.)

Defendant filed a motion for a pre-motion conference in anticipation of its motion to dismiss

pursuant to Fed. R. Civ. P. 12(b)(6) on February 24, 2023. (DE 17.) The parties appeared for an

initial conference on April 17, 2023, at which time the Court entered a discovery schedule. (DE

24.) The parties stipulated to Plaintiff filing her amended complaint as the operative pleading

without prejudice to Defendant filing its motion to dismiss against it. (Id.) The amended

complaint was filed on June 20, 2023. (DE 25-1.)

Defendant renewed its pre-motion conference request on May 9, 2023. (DE 27.) On

June 7, 2023, the Court adopted the parties’ proposed briefing schedule regarding Defendant’s

motion to stay discovery. (Electronic Order dated June 7, 2023.) Plaintiff then filed a contested

motion for summary judgment, which appears in substance to be a motion for default judgment

based on Defendant’s purported failure to file an answer. (DE 36; DE 44.) The motion to stay

was fully briefed and pending before the Court as of June 30, 2023. (See DE 42.)

II. DISCUSSION1

“‘[T]he power to stay proceedings is incidental to the power inherent in every court to

control the disposition of the cases on its docket with economy of time and effort for itself, for

counsel, and for litigants.’” Thomas v. N.Y. City Dep’t of Educ., No. 09-CV-5167, 2010 WL

3709923, at *2 (E.D.N.Y. Sept. 14, 2010) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254

(1936)). The filing of a dispositive motion in and of itself does not halt discovery obligations.

That is, a stay of discovery is not warranted, without more, by the mere pendency of a dispositive

motion. Weitzner v. Sciton, Inc., No. 2005- CV-2533, 2006 WL 3827422, at *1(E.D.N.Y. Dec.

27, 2006). Rather, the moving party must make a showing of “good cause” to warrant a stay of

discovery. Chesney v. Valley Stream Union Free Sch. Dist. No. 24, 236 F.R.D. 113, 115

(E.D.N.Y. 2006).

In evaluating whether a stay of discovery pending resolution of a motion to dismiss is

appropriate, courts typically consider: “(1) whether the defendant has made a strong showing that

the plaintiff’s claim is unmeritorious; (2) the breadth of discovery and the burden of responding

to it; and (3) the risk of unfair prejudice to the party opposing the stay.” Id. (citation omitted).

1 The Court’s consideration and analysis of arguments set forth in Defendant’s pre-motion conference letter

is purely for purposes of weighing the propriety of a stay. This analysis should not in any way be construed

as the Court prejudging or predicting the outcome of the anticipated 12(b)(6) motion.

“Courts also may take into consideration the nature and complexity of the action, whether some

or all of the defendants have joined in the request for a stay, and the posture or stage of the

litigation.” Id. (citation omitted).

“Upon a showing of good cause[,] a district court has considerable discretion to stay

discovery pursuant to Rule 26(c).” Al Thani v. Hanke, 20-CV-4765 (JPC), 2021 WL 23312, at

*1 (S.D.N.Y. Jan. 4, 2021) (alteration in original) (quoting Republic of Turkey v. Christies, Inc.,

316 F. Supp. 3d 675, 677 (S.D.N.Y. 2018)). In assessing good cause, Courts look to “the

particular circumstances and posture of each case.” Ellington Credit Fund, Ltd. v. Select

Portfolio Servs., Inc., No. 08-CV-2437 (RJS), 2008 WL 11510668, at *2 (S.D.N.Y. June 12,

2008) (quoting Hachette Distrib., Inc. v. Hudson Cnty. News Co., 136 F.R.D. 356, 358

(E.D.N.Y. 1991)).

1. Is There a Strong Showing that Plaintiff’s Claims Are Unmeritorious?

Though there is no pending motion to dismiss,2 Defendant has requested a pre-motion

conference in anticipation of its motion. (DE 27.) A party may seek a stay based on a pre-motion

conference request seeking to file an anticipated dispositive motion. See Separ v. County of

Nassau, No. 21-CV-00010 (DRH) (JMW), 2021 WL 2474263, at *1-4 (E.D.N.Y. June 17, 2021)

(analyzing a motion to stay where a pre-motion conference request was pending). As to the first

factor, a stay is warranted where a defendant’s motion “appears not to be unfounded in the law.”

Gandler v. Nazarov, No. 94-CV-2272 (CSH) 1994 U.S. Dist. LEXIS 17885, at *12 (S.D.N.Y.

Dec. 13, 1994). Defendant argues that Plaintiff’s claims are time barred, and regardless, that

Plaintiff fails to plausibly state claims for disability discrimination or retaliation. (DE 40-1 at 3-

7; DE 27.)

2 Although the motion to dismiss has yet to be filed, Plaintiff has filed a motion for summary judgment

(see DE 36 and 44), which is sub judice.

i. Timely EEOC Charge/Failure to Exhaust

First, in New York, a plaintiff -- as a general matter -- must file a claim with the Equal

Employment Opportunity Commission (“EEOC”) within 300 days of the alleged discriminatory

conduct to preserve the right to bring suit under the ADA. See Palummo v. St. Vincent's Med.

Ctr., 4 F. App’x 99, 101 n.1 (2d Cir. 2001) (summary order). “Each incident of discrimination

and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful

employment practice,’” and “each discrete discriminatory act starts a new clock for filing

charges alleging that act.” Nat'l Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113–14

(2002); see also Benjamin v. Brookhaven Sci. Assocs., LLC, 387 F. Supp. 2d 146, 152 (E.D.N.Y.

2005) (dismissing one of three claims because the dismissed claim was not filed with the EEOC

within 300 days of the alleged conduct). Plaintiff was terminated on September 30, 2021. (DE

25-1 at ¶ 120.) Plaintiff filed a formal charge on August 13, 2022, which is 316 days after her

termination. (DE 25-1 at Ex. A-23.) Defendant argues that this renders Plaintiff’s charge

untimely. (DE 40-1 at 4.)

Though the ADA requires a plaintiff to have filed a timely charge, a formal charge

written on a specific form is not necessarily required. See Price v. City of N.Y., 797 F. Supp. 2d

219, 227 (E.D.N.Y. 2011) (construing an intake questionnaire as a charge). Instead, the Court

looks to “whether (1) Plaintiff provided the EEOC with the information required by the relevant

regulations, and (2) whether Plaintiff’s informal complaint must be reasonably construed as a

request for the agency to take remedial action.” Id. (internal quotation marks omitted).

Plaintiff alleges that she filed a written charge, albeit not on a “Form 5” in December of 2021.

(DE 41 at 3.) Plaintiff then received a blank “Form 5A” from the EEOC investigator assigned to

her case, and she wrote a letter telling him she already filed her complaint, and she further

requested a right to sue letter. (Id.) Seven months later, Plaintiff contacted the investigator again

and was sent a “Form 5” on which she states she copied the details of her previously filed

informal complaint. (Id.) Thus, her informal complaint may be sufficient make her claims

timely. See Morales v. N.Y.S. Dep't of Labor Div. of Emp. Servs., No. 06-CV-899, 2007 WL

2874570, at *8 (N.D.N.Y. Sept. 27, 2007) (declining to dismiss Title VII claims on statute of

limitations grounds because “[a]lthough the complaint revealed possible defects related to the

timely filing requirement, [considering the plaintiff's allegations that she filed a timely informal

letter] there exists an equally possible likelihood that [the plaintiff] can raise factual setoffs to

[the defendant’s] affirmative defense”).

Thus, Defendant’s argument on this ground is less persuasive, and it simply cannot be

concluded -- based solely upon the pre-motion letters -- that Plaintiff’s claims on this ground are

unmeritorious. But there is more. A perscrutation of Defendant’s remaining arguments,

however, lead to a different conclusion.

ii. Discrimination and Retaliation Claims

Plaintiff asserts disability discrimination and retaliation claims under the ADA. To

establish an ADA disability discrimination claim, a plaintiff must allege that: “(1) the employer

is subject to the ADA; (2) the plaintiff is disabled within the meaning of the ADA or perceived to

be so by [his or her] employer; (3) [her or she] was otherwise qualified to perform the essential

functions of the job with or without reasonable accommodation; (4) [he or she] suffered an

adverse employment action; and (5) the adverse action was imposed because of [his or her]

disability.” Davis v. N.Y.C. Dep't of Educ., 804 F.3d 231, 235 (2d Cir. 2015); Williams v. N.Y.C.

Dep't of Educ., No. 18-CV-11621, 2020 WL 906386, at *3 (S.D.N.Y. Feb. 25, 2020). And “[t]o

state a claim for ADA retaliation, ‘a plaintiff must allege that: (1) [he or she] engaged in an

activity protected by the ADA; (2) the employer was aware of this activity; (3) the employer took

an adverse employment action against [him or her]; and (4) a causal connection exists between

the alleged adverse action and the protected activity.’” Robles v. Medisys Health Network, Inc.,

No. 19-CV-6651, 2020 WL 3403191, at *11 (E.D.N.Y. June 19, 2020) (alterations omitted)

(internal quotation marks omitted).

A disability under the ADA is defined as follows: “(A) a physical or mental impairment

that substantially limits one or more major life activities of such individual; (B) a record of such

an impairment; or (C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1). As

relevant here, a plaintiff has a “record of” a disability when that plaintiff “has a history of, or has

been misclassified as having, a mental or physical impairment that substantially limits one or

more major life activities.” 29 C.F.R. § 1630.2(k)(1). A plaintiff is “regarded as” having a

disability where that plaintiff “establishes that [he or she] . . . has been subjected to an action

prohibited [under the ADA] because of an actual or perceived physical or mental impairment

whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. §

12102(3)(A).

Plaintiff alleges she was “regarded as” disabled because Defendant treated her like she

had Covid-19 or a suppressed immune system prone to contracting and transmitting dangerous

diseases. (DE 25-1 at ¶¶ 137-48.) Plaintiff argues that she was “regarded as” disabled under the

ADA because Defendant required her to take specific medical treatments in order to continue her

employment, which in her view shows that Defendant assumed Plaintiff was impaired and

needed to be treated. (DE 41 at 4.) Plaintiff also alleges Defendant made a “record of” her

disability by, for example, classifying her as an “untreated” employee. (DE 25-1 at ¶¶ 150-57.)

Plaintiff argues that Defendant made a “record of” her having a disability when Defendant

misclassified her as impaired for not getting vaccinated and kept records of the same. (DE 41 at

5.)

Defendant maintains that its contentions are undoubtedly grounded in the law considering

that every federal court to have reached the issue in similar cases has concluded that Plaintiff’s

proffered theories are without merit. Indeed, courts have rejected similar ADA claims that are

premised on objections to uniform Covid-19 vaccination requirements. Courts have found that a

plaintiff is not “regarded as” disabled simply because their employer regarded them as being at

risk of Covid-19 because this prong does not apply to transitory and minor impairments, and that

a hospital does not misclassify a healthcare worker under the “record of” prong within the

meaning of the ADA in requiring their employees to be vaccinated against Covid-19. See

Sharikov v. Philips Med. Sys. MR, Inc., No. 22-CV-00326 (BKS) (DJS), 2023 WL 2390360, at

*7, 9 (N.D.N.Y. Mar. 7, 2023) (rejecting ADA claims that employees subject to Covid-19

vaccination policies were “regarded as” having disabilities or that keeping track of unvaccinated

employees meets the “record of” prong ); see also Johnson v. Mount Sinai Hosp. Grp., Inc., No.

22-CV-2936 (AMD) (JRC), 2023 WL 2163774, at *3 (E.D.N.Y. Feb. 22, 2023) (rejecting

similar ADA claims based on similar Covid-19 vaccination requirements), motion for relief from

judgment denied, 2023 WL 3159233 (E.D.N.Y. Apr. 28, 2023); D'Cunha v. Northwell Health

Sys., No. 1:22-CV-0988 (MKV), 2023 WL 2266520, at *5 (S.D.N.Y. Feb. 28, 2023) (rejecting

ADA claims where plaintiff maintained that she was “regarded as” having an impairment based

on her risk of developing Covid-19 in the future); Newell v. State Univ. of New York Westchester

Cmty. Coll., No. 22-CV-08524 (PMH), 2023 WL 4082030, at *3 (S.D.N.Y. June 20, 2023)

(collecting cases within this circuit rejecting the notion that an employer’s Covid-19 polices

satisfied the “regarded as” prong).

Plaintiff also alleges that non-job-related medical examinations and treatments violated

her rights under the ADA because it is unlawful for an employer to inquire about whether an

employee has a disability or regarding the nature and severity of the disability unless it is related

to job-functions. (See DE 25-1 at ¶¶ 158-88.) Plaintiff alleges that Defendant deployed, inter

alia, symptom surveys, regular testing, and vaccine status checks. (Id.) However, courts have

rejected the notion that testing and medical inquiries related to Covid-19 violate the ADA. See,

e.g., Sharikov, 2023 WL 2390360, at *16 (“The Court further concludes that the daily

screenings, temperature checks, COVID-19 testing at customers’ requests, and vaccination

attestations, was a reasonably effective method of achieving the employer's goal of preventing

the spread of COVID-19 in the workplace and ensuring the safety of its employees.” (internal

quotation marks omitted)).

Moreover, Plaintiff alleges that after being notified about Defendant’s mandatory Covid-

19 policy, she arranged to meet with human resource representatives and raised her objections.

(DE 25-1 at ¶¶ 96-100.) This renders Plaintiff’s retaliation claim deficient since Defendant’s

Covid-19 policy, not her protected activity, was the reason for Plaintiff’s termination. Johnson,

2023 WL 2163774, at *7 (“[T]he defendant adopted its policies before the plaintiff objected to

vaccinations and masking.”); see also Speaks v. Health Sys. Mgmt., Inc., No. 22-CV-77, 2022

WL 3448649, at *6 (W.D.N.C. Aug. 17, 2022) (“[I]t is clear that the policy – which was

undisputedly the grounds for Speaks’ termination when she chose to remain unvaccinated – was

enacted before Speaks spoke up in opposition to the vaccination requirement. Therefore, it is not

reasonable to infer that there was a causal connection between her criticism of the policy and her

termination.”). Thus, Defendant has launched what appear to be meritorious arguments against

Plaintiff’s claims.

Accordingly, Defendant has, at least through the pre-motion letter, demonstrated

Plaintiff’s claims to be unmeritorious. Accordingly, this factor strongly favors a stay of

discovery.

2. The Breadth and Burdens of Discovery

As to the second factor, the breadth of discovery and the burden of responding to it,

Defendant argues discovery would be contentious and burdensome. This case is in its infancy

with discovery only at the starting line. Paper discovery is far from complete give that the

parties’ deadline to respond to each other’s discovery requests is not until August 31, 2023, and

depositions have not been taken yet -- leaving a lot to be done. Defendant argues that the

discovery Plaintiff has signaled she will seek is immaterial, and, inter alia, disputes around the

proper parameters for discovery, coupled with the costs of seeking documents from the EEOC to

rebut Plaintiff’s claims would be unduly burdensome. (DE 40-1 at 12; DE 42 at 2.)

Indeed, if Defendant’s motion to dismiss is granted in its entirety, a contentious and

expensive discovery process would be in vain. See Vida Press v. Dotcom Liquidators, Ltd., No.

22-CV-2044 (HG) (JMW), 2022 WL 17128638, at *2 (E.D.N.Y. Nov. 22, 2022) (“[T]he second

factor favors a stay as the breadth of discovery and corresponding burden of responding would

prejudice Defendant if its motion to dismiss is indeed granted.”).

Accordingly, this factor favors a stay of discovery.

3. Prejudice to Plaintiff

As to the third factor, the risk of unfair prejudice to the party opposing the stay, plaintiff

argues that she would certainly be prejudiced by the stay. Plaintiff states that although she has

served written answers and objections to Defendant’s discovery requests as of June 14, 2023,

Defendant purposefully filed a motion to stay so it did not have to provide its responses to

plaintiff’s requests. (DE 41 at 10.) This argument is unavailing.

The filing of a motion to stay does not itself stay the case pending resolution of the

motion. Thus, the parties are obligated to adhere to the scheduling order issued on April 17,

2023, as amended by the Court’s June 21, 2023 Order, which deemed Plaintiff’s service of her

first set of interrogatories and document demands timely. (Electronic Order dated June 21,

2023.) Pursuant to that schedule, responses to discovery requests are due August 31, 2023. (DE

24.) But Plaintiff has been aware of the deadlines for service of and responses to discovery

requests, and Defendant’s intention to file a motion to stay, since April 17, 2023. (DE 24.)

Plaintiff provided her discovery responses on June 14, 2023, fully aware of the briefing

schedule on Defendant’s motion to stay that was adopted on June 6, 2023. Plaintiff cannot now

claim prejudice if Defendant’s motion is granted prior to its responses being provided.

Nonetheless, Plaintiff has not identified any real prejudice that would result from a stay of

discovery pending Defendant’s motion to dismiss. Even if Plaintiff’s claims survive the motion,

discovery would resume and Defendant would be obligated to provide, inter alia, paper

discovery in the normal course of the litigation. Defendant is under a duty to preserve any

documents and electronically stored information. Notably, no difference would have been made

to Plaintiff’s ability to prosecute her case, Defendant would not have obtained any unfair

advantage, and Plaintiff would not have incurred any additional expenses.

Finally, the Court notes that throughout her opposition Plaintiff makes fanciful and

conclusory arguments about the District Court’s bias toward ADA cases and apparently toward

her, and about an alleged scheme to make ADA cases unappealable by staying discovery. (DE

41 at 11.) In any event, Plaintiff’s arguments are wholly without merit. (Id.)

Accordingly, weighing all of the relevant factors, the Court finds that a stay of discovery

is warranted.

III. CONCLUSION

Based upon the foregoing, good cause exists warranting a stay of discovery pending the

outcome of Defendant’s anticipated Rule 12(b)(6) motion. Therefore, the motion to stay (DE 40)

is hereby granted and discovery is stayed until the resolution of Defendant’s anticipated motion

to dismiss.

Dated: Central Islip, New York

July 11, 2023

S O O R D E R E D:

James M. Wicks

/s/

JAMES M. WICKS

United States Magistrate Judge