Brown v. New York City Department of Education

UNITED STATES DISTRICT COURT DATE FILED: 09/21/ 2022

SOUTHERN DISTRICT OF NEW YORK

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MARY HURD BROWN, :

:

Plaintiff, : 20-CV-2424 (VEC)

-against- :

: ORDER ADOPTING A

NEW YORK CITY DEPARTMENT OF : REPORT &

EDUCATION, : RECOMMENDATION

:

Defendant. :

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VALERIE CAPRONI, United States District Judge:

WHEREAS on March 17, 2020, Plaintiff Mary Hurd Brown, proceeding pro se, filed a

complaint against the New York City Department of Education (“DOE”), Dkts. 1–2;1

WHEREAS Plaintiff asserted causes of action under the Age Discrimination in

Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 to 634; the Rehabilitation Act of 1973

(“Rehabilitation Act”), 29 U.S.C. §§ 701 to 796; the Americans with Disabilities Act of 1990

(“ADA”), 42 U.S.C. §§ 12112 to 12117; the New York State Human Rights Law (“NYSHRL”),

N.Y. Exec. Law §§ 290 to 297; and the New York City Human Rights Law (“NYCHRL”),

N.Y.C. Admin. Code §§ 8-101 to 131, see Dkt. 9;

WHEREAS following an unsuccessful attempt at mediation, on December 30, 2020,

Defendant moved to dismiss the complaint for failure to state a claim under Fed. R. Civ. P.

12(b)(6), which Plaintiff opposed, Dkts. 17, 25, 28;

1 Plaintiff’s initial complaint also named Eric Friedman as a defendant. Dkt. 1. Her amended complaint

named only DOE as a defendant. Dkt. 9.

WHEREAS on January 27, 2021, the Court referred this case to Magistrate Judge Wang

for general pretrial management and for the preparation of reports and recommendations on any

dispositive motions, Dkt. 23;

WHEREAS on August 31, 2021, Judge Wang entered a report and recommendation,

recommending that the Court grant Defendant’s motion to dismiss with leave to amend, Dkt. 29

at 1;

WHEREAS on September 20, 2021, the Court adopted Judge Wang’s report and

recommendation in full, granting Defendant’s motion to dismiss with leave to amend and

reiterating the additional information that Plaintiff should include in any amended complaint:

1. Facts from which the Court can infer that, after 2013, Plaintiff was qualified for her

position, either with or without a reasonable accommodation;

2. The circumstances and contents of Plaintiff’s communications in which she informed

DOE of her disability;

3. The accommodation(s) Plaintiff requested and received, if any, during her tenure at

DOE;

4. The facts surrounding any retaliatory acts taken by Mr. Friedman, Mr. Gabbard, or

anyone else;

5. To the extent Plaintiff seeks to allege disparate treatment by comparison, facts

regarding each comparator who Plaintiff alleges was treated more favorably that would

allow the Court to infer that the comparator was “similarly situated in all material

respects” to Plaintiff. See Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir.

1997) (citation omitted).

Dkt. 30;

WHEREAS on November 2, 2021, Plaintiff filed a second amended complaint (“SAC”),

SAC, Dkt. 34;

WHEREAS following another unsuccessful attempt at mediation, on January 19, 2022,

Defendant moved to dismiss the SAC for failure to state a claim under Fed. R. Civ. P. 12(b)(6),

Dkt. 39;

WHEREAS on March 28, 2022, Plaintiff responded to the motion, Dkt. 47, and on May

11, 2022, Defendant replied in support of its motion, Dkt. 51;

WHEREAS on June 6, 2022, Plaintiff responded to Defendant’s motion to dismiss again,

this time requesting summary judgment, Dkt. 55;

WHEREAS on June 27, 2022, Defendant replied in support of its motion, Dkt. 58;

WHEREAS on September 1, 2022, Judge Wang entered a report and recommendation

(“R&R”), recommending that the motion to dismiss be granted except as to Plaintiff’s failure to

accommodate claim under the ADA and the Rehabilitation Act with respect to her personal car

use, R&R, Dkt. 61, at 1;

WHEREAS in the R&R, Judge Wang notified the parties that, pursuant to 28 U.S.C. §

636(b)(1) and Fed. R. Civ. P. 72(b), they were permitted to object to the R&R’s findings, id. at

17–18;

WHEREAS on September 12, 2022, Plaintiff objected to the R&R, see Pl. Obj., Dkt. 62;

WHEREAS in reviewing an R&R, a district court “may accept, reject, or modify, in

whole or in part, the findings or recommendations made by the magistrate judge,” 28 U.S.C. §

636(b)(1)(C);

WHEREAS as to the portions of an R&R to which no party objects, the Court may accept

those findings provided that “there is no clear error on the face of the record,” Heredia v. Doe,

473 F. Supp. 2d 462, 463 (S.D.N.Y. 2007) (quoting Nelson v. Smith, 618 F. Supp. 1186, 1189

(S.D.N.Y. 1985)); see also Fed. R. Civ. P. 72(b) advisory committee’s note;

WHEREAS an error is clear when the reviewing court is left with a “definite and firm

conviction that a mistake has been committed,” see Cosme v. Henderson, 287 F.3d 152, 158 (2d

Cir. 2002) (quoting McAllister v. United States, 348 U.S. 19, 20 (1954));

WHEREAS when specific objections are made, “[t]he district judge must determine de

novo any part of the magistrate judge’s disposition that has been properly objected to,” Fed. R.

Civ. P. 72(b)(3); United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997);

WHEREAS the Court need not consider arguments contained in the objections that were

not raised initially before the magistrate judge, see Robinson v. Keane, No. 92–CV–6090, 1999

WL 459811, at *4 (S.D.N.Y. June 29, 1999) (“These issues were not raised before the Magistrate

Judge and therefore were not addressed by him; accordingly, they may not properly be deemed

‘objections’ to any finding or recommendation made in the Report and Recommendation.”); and

WHEREAS where objections are “merely perfunctory responses argued in an attempt

to . . . rehash[] the same arguments set forth in the original papers,” a “district court need only

find that there is no clear error on the face of the record in order to accept the Report and

Recommendation,” Phillips v. Reed Grp., Ltd., 955 F. Supp. 2d 201, 211 (S.D.N.Y. 2013)

(cleaned up);

IT IS HEREBY ORDERED that the R&R is adopted, and Defendant’s motion to dismiss

is GRANTED in part and DENIED in part. Judge Wang recommended dismissing all of

Plaintiff’s causes of action for failure to state a claim pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure except for Plaintiff’s failure to accommodate claim under the ADA and

the Rehabilitation Act in connection with her use of a personal car to make home visits. See

R&R at 1. The Court adopts Judge Wang’s recommendation, albeit on slightly different

grounds.

Neither party objects to Judge Wang’s recommendation that this Court: dismiss (again)

Plaintiff’s state law claims under the NYCHRL and the NYSHRL, dismiss (again) Plaintiff’s

ADA and ADEA claims arising from discrete discriminatory or retaliatory acts that occurred

prior to May 23, 2018, and deny Defendant’s motion to dismiss as to Plaintiff’s failure to

accommodate claim under the ADA and the Rehabilitation Act based on actions taken with

respect to her use of her personal car.2

Although it is somewhat difficult to discern the contours of Plaintiff’s objections, she

mostly argues that she was wrongfully singled out by her supervisors, Pl. Obj. at 1–2, and that

Judge Wang’s recommendation that Plaintiff’s ADA and Rehabilitation Act accommodation

claim was sufficiently pled “opened” the “flood gates” to Plaintiff’s other claims, id. at 3, 5.

Even construing these objections liberally, see Massie v. Museum of Art, 651 F. Supp. 2d 88, 93

(S.D.N.Y. 2009), they are either conclusory, reiterate prior arguments, or raise arguments for the

first time that she failed to raise in her oppositions to Defendant’s motion to dismiss, and

therefore do not merit de novo review. Upon careful review, the Court finds no clear error in

Judge Wang’s conclusions that Plaintiff failed to allege sufficient facts that would allow the

Court reasonably to infer that she was discriminated against or that she suffered an adverse

employment action because of her disability in violation of the ADEA, ADA, or Rehabilitation

Act, R&R at 12–14, that Plaintiff’s allegations of workplace harassment are not sufficiently

severe or pervasive to establish a hostile work environment claim under the ADEA, the ADA, or

the Rehabilitation Act, id. at 14–16, and that Plaintiff failed adequately to allege retaliation for

protected activity under the ADEA, the ADA, or the Rehabilitation Act, id. at 16–17.

2 Plaintiff states that she “objects to each and every part” of the R&R “except for Plaintiff’s disability

discrimination failure to accommodate claim for her personal car use accommodation under the ADA and RA,” but

does not discuss any objections with respect to her state law claims or the time-barred nature of certain ADA and

ADEA claims. See Pl. Obj. at 1, 2–5.

One of Plaintiff’s objections warrants discussion. Construing Plaintiff’s objections as a

pro se litigant liberally, see Massie, 651 F. Supp. 2d at 93, Plaintiff objects that Judge Wang

failed sufficiently to take into account the specific circumstances surrounding her employer’s

revocation and eventual reinstatement of her early hours and workspace accommodations (the

“Hours and Workspace Accommodations”) in concluding that she has not alleged a prima facie

case of failure to provide a reasonable accommodation in violation of the ADA or the

Rehabilitation Act. Pl. Obj. at 4–5. Plaintiff specifically objects to Judge Wang’s reliance on

two cases, Lewis v. Erie Cty. Med. Ctr. Corp., 907 F. Supp. 2d 336 (W.D.N.Y. 2012), and

Nieblas-Love v. N.Y.C. Hous. Auth., 165 F. Supp. 3d 51 (S.D.N.Y. 2016), for her conclusion that

Plaintiff’s Hours and Workspace Accommodations cannot form the basis of a reasonable

accommodation claim because they were ultimately approved by her employer. See Pl. Obj. at 4;

R&R at 12.

Upon de novo review, the Court agrees with Judge Wang that Plaintiff failed to state a

viable discrimination claim under the ADA or the Rehabilitation Act in connection with the

Hours and Workspace Accommodations, albeit on slightly different grounds. The R&R does not

address Plaintiff’s allegation that it took nine to ten months for her Hours and Workspace

Accommodations to be reinstated. See SAC ¶¶ 4, 50–51 (alleging that Plaintiff began receiving

the Hours and Workspace Accommodations in 1993, that she submitted a new accommodation

request after those accommodations were revoked in December 2018, and that her request was

eventually implemented in “September/October of 2019”). Although Lewis and Nieblas-Love

support the principle that a plaintiff cannot establish a failure to provide a reasonable

accommodation if the accommodation was in fact provided, neither case involves a similarly

protracted delay in providing the accommodation. See Lewis, 907 F. Supp. 2d at 352 (wherein

plaintiff asked for a change to her schedule to accommodate an internship but was “ultimately

able to complete her internship without a schedule change”); Nieblas-Love, 165 F. Supp. 3d at 73

(wherein plaintiff “admit[ted] that he was accommodated for his alleged disability” but argued

that the accommodation was “unreasonable”). Courts in this Circuit have found that delays

comparable to those alleged by Plaintiff may constitute a constructive failure to accommodate.

See Logan v. Matveevskii, 57 F. Supp. 3d 234, 271 (S.D.N.Y. 2014) (“[C]ourts have found

plaintiffs’ requests for reasonable accommodations to have been constructively denied after

delays approximating four months.” (collecting cases)); O’Toole v. Ulster County, No. 12–CV–

1228, 2014 WL 4900776, at *8 (N.D.N.Y. Sept. 30, 2014) (finding that a reasonable jury could

find a six-month delay in providing an ergonomic chair establishes failure to reasonably

accommodate); Fol v. City of New York, No. 01 Civ.1115 THK, 2003 WL 21556938, at *8

(S.D.N.Y. July 9, 2003) (finding that a reasonable jury “could conclude that [d]efendants failed

to reasonably accommodate [p]laintiff’s disability” under the ADA because of an eight-month

delay in providing an accommodation).

Although Plaintiff alleges a significant delay in providing her requested accommodation,

to establish constructive denial of a reasonable accommodation, she must also allege facts from

which the Court can plausibly infer that the delay was “caused by discriminatory animus . . . .”

Wenc v. New London Bd. of Educ., No. 3:14–CV–0840 (VAB), 2016 WL 4410061, at *12 (D.

Conn. Aug. 16, 2016), aff’d, 702 F. App’x 27 (2d Cir. 2017); see also Franks v. Eckert, 18–CV–

589, 2020 WL 4194137, at *4 (W.D.N.Y. July 21, 2020) (dismissing plaintiff’s ADA and

Rehabilitation Act claims where he did not “set forth any facts to suggest that the delay was

based on discriminatory animus”); Saunders v. Queensborough Cmty. Coll., No. 13 CV

5617(PKC)(RML), 2015 WL 5655719, at *7 (E.D.N.Y. Sept. 24, 2015) (concluding that plaintiff

failed to adequately plead violation of the ADA based on a seven-month delay in providing

accommodations because there was “nothing in [p]laintiff’s [c]omplaint to suggest that the

seven-month delay she experienced was motivated by discriminatory intent, bad faith, or

obstructionism”). Allegations of mere “negligence or incompetence” are insufficient to state a

claim. Saunders, 2015 WL 5655719, at *7. Because Plaintiff made no factual allegations that

would permit the Court to infer that the delay in providing her requested accommodations was

motivated by animus, she cannot maintain a corresponding case for failure to provide a

reasonable accommodation under the ADA or the Rehabilitation Act.* The Court therefore

adopts Judge Wang’s conclusion that Plaintiffs claim must be dismissed.

The Clerk of Court is respectfully directed to close the open motions at docket entries 39

and 55. The Clerk is further directed to mail a copy of this Order to the pro se Plaintiff and to

note the mailing on the docket.

SO ORDERED. Oe ( ~

Date: September 21, 2022 VALERIE CAPRONI

New York, NY United States District Judge

3 Although pro se plaintiffs should be given leave to amend at least once if there is “any indication that a

valid claim might be stated,” Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002) (internal quotation marks and

citation omitted), Plaintiff was already advised to provide “facts surrounding any retaliatory acts” taken by her

employers or “anyone else,” Dkt. 30 at 3, and did not provide any additional facts in her SAC curing the deficiency

at issue. See, e.g., TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505-06 (2d Cir. 2014) (denying leave to

amend where a plaintiff already failed to cure pleading deficiencies and did not specify what new facts would cure

those deficiencies); Decastro v. Randstad Prof'ls US, LLC, No. 15—CV—0944(RA), 2019 WL 131856, at *4

(S.D.N.Y. Jan. 8, 2019) (denying pro se plaintiff leave to amend because “the same deficiencies in [plaintiff's]

original complaint remain[ed] in his amended complaint, even after he was advised that such deficiencies would

prove fatal to his claim”). The Court therefore does not exercise its discretion to grant Plaintiff leave to amend

again.