RINDOS v. PARTNERS GROUP (USA), INC.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

JUSTIN RINDOS,

Plaintiff,

Civ, No, 2:22-CV-05187 (WJM)

v.

PARTNERS GROUP (USA), INC., OPINION

Defendant.

WILLIAM J. MARTINI, U.S.D.J.

This matter arises out of the termination of plaintiff Justin Rindos’ (“Plaintiff’ or

“Rindos”) employment with Partners Group USA, Inc. (“Defendant” or “Partners Group”).

Before the Court is Defendant’s motion to dismiss pursuant to Federal Rule of Civil Procedure

12(b)(6). ECF No. 17. After careful consideration of the parties’ submissions, and for the

reasons set forth below, Defendant’s motion is GRANTED.

I. BACKGROUND!

The Court assumes familiarity with the facts of this matter, as discussed in the Court’s

previous Opinion” on March 21, 2023, and will only discuss the relevant facts below. Plaintiff

largely re-alleges the same factual allegations in the original complaint, however, Plaintiff

now alleges that at no point did he “make any intentional misrepresentations regarding his

arrest or conviction history.” FAC at { 15, 23, 33. Plaintiffalso newly alleges that: (1) Plaintiff

indicated to Lauren Zierolf (human resources business unit) and Amanda Evans (head of

human resources) that his arrest would result in a non-conviction as part of the Pre-Trial

Intervention (“PTI”) program; (2) Lauren Zierolf indicated to Plaintiff that his Family and

Medical Leave Act (“FMLA”) leave would be exhausted on March 24, 2022, at which point

it would convert to a standard request for medical leave due to a disability; (3) Defendant

selectively enforced their policies and declined to terminate other employees for serious

violations of the company handbook; (4) Plaintiff completed the PTI program and the charges

pending against him were dismissed; (5) Defendant did not indicate in its termination letter

to Plaintiff that Plaintiff made any intentional misrepresentations regarding his arrest or

conviction history and relied solely on the “serious nature of the conduct that led to [his]

arrest”; (6) Defendant was aware of Plaintiff's December 19, 2021 arrest by January 23, 2022

and terminated Plaintiff's employment on May 19, 2022, the temporal proximity of which,

' This Opinion draws its facts from the First Amended Complaint (“FAC”), ECF No. 16, the well-pleaded

allegations of which are taken as true on this motion, See Ashcroft vy. Igbal, 556 U.S. 662, 678 (2009).

? The Court incorporates its previous March 21, 2023, Opinion by reference. See ECF No. 11.

Plaintiff alleges, demonstrates Defendant’s discriminatory and retaliatory animus towards

Plaintiff§ and (7) Defendant’s stated reason for terminating Plaintiff was pretextual. Jd. at □□

24, 27, 29, 40, 41, 47-50.

□□ PROCEDURAL HISTORY

Plaintiff filed his initial four-count complaint against Defendant on August 24, 2022.

ECF No, |. Plaintiff amended his complaint on April 25, 2023. ECF No. 16. Count I alleges

Defendant violated the New York City Human Rights Law “NYCHRL”), N.Y. City. Admin.

Code § 8-101-8-131, by discriminating against him based on his disability or perceived

disability. FAC at 9 54. Specifically, Plaintiff alleges Defendant failed to provide him with

any reasonable accommodation for his disability and failed to “[engage] in the interactive

process to determine whether they could provide him with a reasonable accommodation,” Jd.

at J 55-56. Count I alleges Defendant violated the New York State Human Rights Law

(“NYSHRL”), N.Y. Exec. Law. §§ 290-301, by similarly discriminating against Plaintiff

based on his disability and failing to provide a reasonable accommodation. /d. at {J 59-60.

Count Ill alleges Defendant violated the NYCHRL Fair Chance Act (“FCA”) by

discriminating against Plaintiff due to his involvement with the criminal justice system and

terminating his employment on the basis of a non-conviction. /d. at {J 64-66. Finally, Count

IV alleges Defendant violated the Family and Medical Leave Act, 29 USCS, Ch. 28, by failing

to place Plaintiff on protected leave and reinstating him to his prior position following any

protected leave time. /d. at {J 73-74.

On March 2.1, 2023, the Court granted Defendant’s motion to dismiss Counts [, [, and

III without prejudice. See ECF Nos, 11, 12. The Court also granted Defendant’s motion to

dismiss Count IV with respect to FMLA retaliation and denied the motion to dismiss Count

IV with respect to FMLA interference. /¢. Defendant filed its second motion to dismiss

Counts I-IV of the FAC on March 16, 2023. See ECF No. 17. Plaintiff filed his opposition on

June 20, 2023, and Defendant filed its reply on June 26, 2023. See ECF Nos. 19, 20. The

Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1332(a) based

on the diverse citizenship of the parties and an amount in controversy exceeding $75,000.°

WI. LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure (“FRCP”) provides for the

dismissal of a complaint if the plaintiff fails to state a claim upon which relief can be granted.

Fed. R. Civ. P. 12(b)(6). The movant bears the burden of showing that no claim has been

stated. See Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a motion

to dismiss under FRCP 12(b)(6), “all allegations in the complaint must be accepted as true,

and the plaintiff must be given the benefit of every favorable inference to be drawn

therefrom.” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). The Court need not accept

as true “legal conclusions,” and “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,

678 (2009). In ruling on a 12(b)(6) motion, the Court is ordinarily limited to the facts as

3 Defendant is a company with its principal place of business in New York and Plaintiff is a citizen of New

Jersey, FAC at ff 2-3.

alleged in the complaint, the exhibits attached thereto, and matters of public record. See

Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1996 (3d Cir, 1993).

The Court may, however, look outside the pleadings and also consider “document{[s] integral

to or explicitly relied upon in the complaint” or any “undisputedly authentic document that a

defendant attaches as an exhibit to a motion to dismiss if the plaintiffs claims are based on

the document.” 2 re Asbestos Prod. Liability Litig. (No. VD, 822 F.3d 125, 134 0.7 Gd Cir.

2016).

To survive a 12(b)(6) motion, “a complaint must contain sufficient factual matter...

to ‘state a claim to relief that is plausible on its face.’” /gbal, 556 U.S. at 678 (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 8. Ct, 1955, 167 L. Ed. 2d 929 (2007)), “A

claim has facial plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Jd.

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than

a sheer possibility that a defendant has acted unlawfully.” Jd.

IV. DISCUSSION

A. NYSHRL and NYCHRL Disability Discrimination and Failure to

Accommodate

Counts I and II allege Defendant discriminated against Plaintiff based on his

alcoholism disability’ and failed to provide him any reasonable accommodation, Def. Mot. at

15-17, ECF No. 17. Specifically, Defendant claims the FAC is devoid of facts that suggest

Defendant terminated Plaintiff due to his disability and the two accommodations Plaintiff

requested was granted. Jd. at 12-14. Plaintiff in his opposition argues that while Defendant

did initially grant Plaintiff medical leave, “Plaintiff's employment was terminated at a time

that he was requesting additional medical leave due to his disability” and therefore Defendant

failed to accommodate his disability. Pl. Opp. at 22-24, ECF No. 19. Furthermore, Plaintiff

again argues it can be easily inferred that he was terminated due to his disability and not on

his arrest alone because of the “temporal proximity between Plaintiffs disclosure of his

disability and his subsequent termination,” PL Opp, at 20.

Section 8-107(1){a) of the NYCHRL prohibits employment discrimination based on

an “actual or perceived ... disability.” N.Y.C. Admin. Code § 8-107(1)(a). The statute defines

“disability” as “any physical, medical, mental or psychological impairment, or a history or

record of such impairment.” /d. § 8-102(16)(a). “In the case of alcoholism,” however, the

NYCHRL narrows the definition of “disability” so that it “shall only apply to a person who

(1) is recovering or has recovered and (2) currently is free of such abuse.” Jd. § 8-102(16)}(c).

Historically, discrimination claims under the NYSHRL were “largely subject to the same

analysis [courts] apply under Title VII.” Reyes v. Westchester County Health Care Corp., No.

21-cv-0410, 2021 WL 4944285, at *2 (2d Cir. Oct. 25, 2021) (citing Brown v. Daikin Am.

Ine., 756 F.3d 219, 226 (2d Cir, 2014)); see Williams v. MTA Bus Co., No. 17-cv-7687, 2020

‘ Any discrimination claims based on the disability of anxiety and depression will not be considered as

Plaintiff's FAC makes clear that he informed Defendant of such disability in July of 2021 and has not alleged

any facts to plausibly infer that he was discriminated on that basis.

WL 1922911, at *5 (S.D.N.Y. Apr. 20, 2020) (same). However, in June of 2019, New York

State amended the NYSHRL, “the effect of which is to render the standard for claims [brought

under the NYSHRL] closer to the standard under the NYCHRL.” Wellner v. Montefiore Med.

Ctr., No. 17-cv-3479, 2019 WL 4081898, at *5 n.4 (S.D.N.Y. Aug. 29, 2019); DeAngelo v.

MAXIMUS/NY Medicaid Choice, No. 19-cv-7957, 2022 WL, 3043665, at *12 n.15 (S.D.NLY.

Aug. 2, 2022) (discussing the more liberal post-amendment standard under the NYSHRL);

As to the NYCHRL, “courts must construe the NYCHRL ‘liberally for the accomplishment

of the uniquely broad and remedial purposes thereof’” Harris vy. NYC. Hum. Res. Admin,

No, 20-ev-2011, 2022 WL 3100663, at *8 (S.D.N.Y. Aug, 4, 2022) (quoting Leroy v. Delta

Airlines, Inc., 36 F Ath 469, 474 (2d Cir. 2022)). “To state a prima facie case of disability

discrimination under the ... NYSHRL, or NYCHRL, a plaintiff must show: (1) the employer

is subject to the ... NYSHRL, or NYCHRL; (2) he suffers from a disability within the

meaning of the... NYSHRL, or NYCHRL; (3) he is otherwise qualified to perform his job;

and (4) he suffered an adverse employment decision because of his disability.” Brown v. The

Pension Bds., 488 F, Supp. 2d 395, 405-06 (S.D.N.Y. 2007) (collecting cases). “To prevail

onan NYCHRL discrimination claim, ‘the plaintiff need only show that her employer treated

her less well, at least in part for a discriminatory reason.’” Reed v. Nike, Inc., No. 17 Civ.

7575, 2019 WL 2327519, at *1 (S.D.N.Y. May 31, 2019) (quoting Mihalik y. Credit Agricole

_ Cheuvreux N. Am., Inc., 715 F.3d 102, 110 0.8 (2d Cir, 2013)).

Here, Plaintiff again asserts conclusory allegations that are insufficient to state a claim

upon which relief can be granted. Plaintiff largely recycles his previous argument, claiming

only that the temporal proximity between the expiration of Plaintiff's FMLA leave (March

24, 2022) and the date of his termination (May 19, 2022) is sufficient to raise an inference of

discrimination.° The Court disagrees. Plaintiff points to no plausible evidence connecting his

disability and his termination other than the mere fact Defendant was aware of his disability.

The connection between Plaintiffs disability and his alleged discrimination is still too

attenuated. In fact, while aware of his disability, Defendant granted Plaintiff medical leave

twice before terminating his employment nearly five months later. Furthermore, Defendant

first became aware of Plaintiff?s disability regarding alcoholism when he completed and

submitted his inpatient treatment forms sometime between December 28, 2021, and January

4, 2022. FAC. {9 11-13. Defendant became aware of Plaintiff's arrest, and his failure to

disclose it, on January 23, 2022. Jd. at § 15. Yet Plaintiff was not terminated until May 19,

2022, nearly five months later. The Court sees no reason to use the expiration of Plaintiff's

FMLA leave on March 24, 2022, as the starting point especially when Plaintiff's FAC clearly

establishes that Defendant was informed of Plaintiff's disability sometime between December

2021 and January 2022. Id. at { 13.

To assert an NYSHRL accommodation claim, “an employee must show that: (1) he is

a person with a disability under the meaning of the [Americans with Disabilities Act]; (2) an

employer covered by the statute had notice of his disability; (3) with reasonable

accommodation, [the employee] could perform the essential functions of the job at issue; and

(4) the employer has refused to make such accommodations.” Noll v. Int'l Bus. Machines

5 Plaintiff's allegation that Defendant treated other similarly situated employees differently by not enforcing

company policy against them is conclusory and unsupported.

Corp., 787 F.3d 89, 94 (2d Cir. 2015) (internal quotation marks and citation omitted). “The

NYCHRL similarly ‘requires that an employer make reasonable accommodation to enable a

person with a disability to satisfy the essential requisites of a job provided that the disability

is known or should have been known by the employer.’” Lazzari v. New York City Dep't of

Parks & Recreation, 751 F. App'x 100, 102 (2d Cir, 2018) (quoting Romanello vy. Intesa

Sanpaolo, S.p.A., 22 N.Y.3d 881, 998 (N.Y. 2013)) (internal quotation marks, citation, and

alteration omitted). The elements to establish disability discrimination under the NYSHRL

and NYCHRL “generally track the ADA.” Thomson v. Odyssey House, No. 14-CV-3857,

2015 WL 5561209, at *18 (E.D.N.Y. Sept. 21, 2015), affd, 652 F. App'x 44 (2d Cir. 2016).

“However, the NYSHRL provides broader protection than the ADA, and the NYCHRL is

broader still.”

Here, Plaintiff alleges his second request for an additional six-month medical leave,

which was designated as FMLA leave, was cut short due to his termination, As a result,

Plaintiff alleges Defendant failed to accommodate his disability by preventing him from

completing his leave and returning to work. Pl. Opp. at 22-23. “An employee seeking FMLA

leave is by nature arguing that he cannot perform the functions of the job, while an employee

requesting a reasonable accommodation communicates that he can perform the essential

functions of the job.” Acker v. Gen. Motors, .L.C., 853 F.3d 784, 792 (Sth Cir, 2017); see

also Navarro v. Pfizer Corp., 261 F.3d 90, 101 (ist Cir. 2001) (noting that the “ADA and the

FMLA have divergent aims, operate in different ways, and offer disparate relief”). Plaintiff's

claim regarding reasonable accommodation under the NYCHRL and NYSHRL as to his

FMLA leave fails to state a claim upon which relief can be granted, Therefore, Defendant’s

motion to dismiss Counts I and I] is GRANTED and Plaintiffs claims for disability

discrimination under Counts I and I] are DISMISSED WITH PREJUDICE.

B. NYCHRL Fair Chance Act

Under Count IT, Plaintiff alleges Defendant violated the FCA by: (1) discriminating

against him due to his involvement with the criminal justice system; (2) terminating his

employment on the basis of a non-conviction; (3) and failing to conduct a complete and

thorough Fair Chance analysis. FAC at ff} 63-67. In his opposition to the instant motion,

Plaintiff largely repeats the arguments made in the first motion to dismiss, claiming Defendant

comunitted a per se violation of the FCA by “failfing] to disclose a written copy of the inquiry

they conducted into [Mr, Rindos’] criminal history [and] failing to share a written copy of

their complete Fair Chance Analysis.” Pl. Opp. at 11. Plaintiff further argues that Defendant

cannot demonstrate that one or both of the Article 23-A exceptions apphed, and Defendant

did not allow Plaintiff to submit evidence of good conduct and rehabilitation.® fd. Defendant

argues it did not violate the FCA since Plaintiff was terminated for having made intentional

misrepresentations regarding his arrest, which he was required to disclose per company

policy. Def. Mot. to Dismiss at 11-14, ECF No, 17.

In relevant part, the FCA states

6 Plaintiff also argues that Defendant discriminated against Plaintiff on the basis of a non-conviction, This is

inconsistent with the FCA, which allows adverse actions against employees for intentionally misrepresenting

arrests or criminal conviction. NYC Administrative Code 8-107, § 10(g).

“fijt shall be an unlawful discriminatory practice for any

employer. .. to take adverse action against any. .. employee based

on an arrest or criminal accusation that is pending. .. unless, after

considering the relevant fair chance factors, the employer

. determines that either (i) there is a direct relationship between the

alleged wrongdoing that is the subject of the pending arrest or

criminal accusation and the employment sought or held by the

person; or (ii) the granting or continuation of the employment

would involve an unreasonable risk to property or to the safety or

welfare of specific individuals or the general public.”

NYC Administrative Code 8-107, § 10(e). The FCA goes on to carve out an exception

allowing employers to take such adverse actions against an employee “who is found to have

made intentional misrepresentations regarding their arrest or conviction history, provided that

such adverse action is not based on a failure to divulge information that a person may not be

required to divulge...” /d. at § 10(g).

Firstly, as FCA makes clear, employers are permitted to take adverse actions against

an employee based on an arrest or pending criminal conviction if the employer considers the

relevant fair chance factors and determines either that there is a direct relationship between

the alleged wrongdoing and the employment held by the employee or granting the

continuation of the employment would involve an unreasonable risk to “property or to the

safety or welfare of specific individuals or the general public.” /d. at § 10(e). The termination

letter attached by Defendant on its initial motion to dismiss clearly states that “the Company

also considered the factors required by Article 23-A of the [NYS] Correction law, prior to

making a determination about your future with the company.’ Evans Cert., Ex. B, ECF No.

6. Defendant goes on to explain the circumstances surrounding Plaintiffs arrest and states

“Tit] has considered the specific duties of your job, the seriousness of the conduct that led to

your arrest, how recently the arrest occurred, and, ultimately concluded that the Company is

unable to continue your employment.” /d. Given that Plaintiff held a leadership role at

Defendant coupled with the violent nature of the alleged conduct leading to Plaintiffs arrest,

Defendant determined that Plaintiffs continued employment would conflict with the

“[clompany’s legitimate interest in protecting the safety and welfare of other employees.” Jd.

Plaintiff's threadbare recitals of the elements of an FCA claim and broad assertions that

Defendant failed to conduct a complete and thorough Fair Chance Analysis are insufficient to

state a claim upon which relief can be granted.* See FAC at {{ 63-67; Evans Cert., Ex. B, ECF

No, 6.

? The Court looks outside of the pleadings and to Defendant’s attachment of Plaintiff's termination letter, See

In ve Burlington Coat Factory Sec, Litig., 114 F.3d 1410, 1426 (3d Cir. 1997); In re Donald J. Trump Casino

See. Litig., 7 F.3d, 357, 368 n.9 Gd Cir, 1993) (“[A] court may consider an undisputedly authentic document

that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the

document.”) (Internal quotations omitted).

® The Court need not accept as true “fegal conclusions,” and “[t]hreadbare recitals of the elements of a cause

of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009).

Furthermore, despite making repeated and conclusory allegations that Plaintiff did not

intentionally misrepresent his arrest, the facts underlying Plaintiffs allegations prove

otherwise, Plaintiff does not contest that he was arrested on December 19, 2021. See FAC at

10. Plaintiff did not reach out to Defendant until December 28, 2021, when he requested a .

one month leave and did not mention his arrest. /d. at {J 11-13. Plaintiff then reached out

again on January 19, 2022, to discuss his leave and similarly did not mention his arrest. □□ at

14. It wasn’t until January 23, 2022, when Defendant reached out to Plaintiff after hearing

he had been arrested in December that Plaintiff then admitted to the incident. Jd. at □ 15.

Defendant’s actions, again, fall squarely under the § 10(g) exception. Since the termination

letter clearly details the Article 23-A factors considered and afforded the Plaintiff an

opportunity to provide additional information before his termination was to be finalized and

his actions fall under an exception of the FCA, Plaintiffs claim must fail. See Evans Cert. Ex.

B, ECF No. 6. Defendant’s motion to dismiss Count II] is GRANTED and Piaintiff’s claim

for FCA violations is DISMISSED WITH PREJUDICE.

C. FMLA

Under Count IV, Plaintiff alleges he was protected under the FMLA, had a right to be

reinstated to his prior position following his leave, and Defendant violated the FMLA by

retaliating against Plaintiff for his attempted exercise of these rights. FAC at 4] 68-74. It is

undisputed that Plaintiff was granted a six-month extension of leave on January 31, 2022. Id.

at 26-27. However, Plaintiff now newly alleges that part of this extension would be

designated as FMLA leave, which was set to expire on March 24, 2022. /d. at 7 27. After

March 24, 2022, and until his termination on May 19, 2022, Plaintiff was on standard medical

leave.“[T Jo prevail on a claim of interference with her FMLA rights, a plaintiff must establish:

1) that she is an eligible employee under the FMLA; 2) that the defendant is an employer as.

defined by the FMLA; 3) that she was entitled to take leave under the FMLA; 4) that she gave

notice to the defendant of her intention to take leave; and 5) that she was denied benefits to

which she was entitled under the FMLA.” Graziadio v. Culinary Inst. of Am., 817 F.3d 415,

424 (2d Cir. 2016). Plaintiff's new allegations clearly indicate that he had exhausted his

FMLA leave at the time of his termination and, therefore, was neither entitled to take leave

under the FMLA nor denied benefits to which he was entitled to under the FMLA.

Defendant’s motion to dismiss Count IV with respect to FMLA interference is GRANTED

and Plaintiffs claim with respect to FMLA interference is DISMISSED WITH

PREJUDICE.

With respect to FMLA retaliation, Plaintiffs allegations still do not pass muster. In

order to state a claim of retaliation under the FMLA, Plaintiff must show: (1) an invocation

of a right to FMLA leave, (2) and adverse employment action, and (3) a casual link between

the two, See Caplan v. L Brands/Victoria's Secret Stores, 704 F. App’x 152, 155 Gd Cir.

2017). Although Plaintiff has adequately pleaded the first two factors, his claim again fails on

the third. Plaintiff asserts that temporal proximity is sufficient to demonstrate a causal link.

However, as this Court previously noted, “evidence of temporal proximity, without more,

from when the Plaintiff invoked his right to the adverse action is insufficient to demonstrate

a casual link unless it is “unusually suggestive” of retaliatory motive. Rindos v. Partners Grp.

(USA), Inc., No. 2:22-CV-05187 (WIM), 2023 U.S. Dist. LEXIS 47341, at *17 (D.N.J. Mar.

21, 2023) (quoting Caplan, 704 F. App’x 155). Plaintiff has failed to plead facts sufficient to

demonstrate FMLA retaliation. Defendant’s motion to dismiss Count IV with respect to

FMLA retaliation is GRANTED and Plaintiff's claim with respect to FMLA retaliation is

DISMISSED WITH PREJUDICE.

Vv. CONCLUSION

For the reasons set forth above, Defendant’s motion is GRANTED. An appropriate

Order shall follow. BZ,

me MARTINI, U.S.D.J.

Date: AuguseX/ 2923