CATHY SEIBEL, District Judge.
Before this Court is Defendant's Motion to Dismiss. (Doc. 9.) For the reasons stated below, Defendant's motion is GRANTED.
The facts (although not the conclusions) in the First Amended Complaint ("AC"), (Doc. 8), are assumed to be true for purposes of this motion.
Plaintiff Stephen Sternkopf is a former employee of Defendant White Plains Hospital (the "Hospital"), where he worked for approximately 25 years in facilities maintenance and as a maintenance mechanic. (AC ¶ 16.) The Hospital is a not-for-profit organization that provides medical care in Westchester County, New York. (Id. ¶ 12.) Plaintiff's duties at the Hospital included repairing, replacing or otherwise improving hospital equipment, which involved performing skilled work in various crafts including plumbing, electrical and painting. (Id. ¶ 17.) Plaintiff's work during the course of his employment was evaluated as "exemplary" and "satisfactor[]y." (Id. ¶ 37.)
On October 20, 2012, Plaintiff was involved in an accident and shattered his knee, requiring hospitalization and surgery. (Id. ¶ 19.)
At some unspecified point thereafter, based on his physical injuries, Plaintiff asked to be placed in Hospital housing that existed as "accommodation[s] for employees with disabilities." (Id. ¶ 40.) Around the same time, Plaintiff also attempted to move to a non-Hospital apartment which, Plaintiff claims, for some unspecified reason required approval from the Hospital. (Id.) In support of Plaintiff's requests for housing accommodations, he presented to the Hospital a letter from a social worker. (AC ¶ 40.)
Plaintiff further alleges that at some point "prior to . . . March 29th, 2013" he was "retaliated against" for an unspecified reason when his supervisor, Ozzie Dahl, "assigned [him] to the maintenance shop, which was a demotion from shop Stewart [sic]." (Id. ¶ 46.) Apparently in response to Plaintiff's complaint to his union regarding this move, Dahl called Plaintiff an "overpaid asshole." (Id. ¶ 46.) Further, on an unspecified date, Dahl made "preferential" and "special arrangements" for Plaintiff's coworker, George Heienmann, after Heienmann lost his driver's license after his second driving while intoxicated offense. (Id. ¶¶ 44-45.) The nature of those arrangements is not described.
Around March 21, 2013, the Hospital's Vice President of Human Resources, John Sanchez, informed Plaintiff that if Plaintiff exceeded the 26-week disability leave allotment, he would be unable to return to his position at the Hospital. (Id. ¶ 22.) On March 29, 2013 (by which point Plaintiff had used 25.4 weeks of leave), Plaintiff attempted to return to work by reporting to the Employee Health office and informing a Hospital employee, Kristina Sposato, that he was ready, willing and able to return to work that day. (Id. ¶¶ 23-24, 26, 28.) In compliance with Hospital requirements that employees returning from disability leave present a note that they are fit to work, (see id. ¶ 24; Affirmation of Francis Carling in Support of Defendant's Motion to Dismiss ("Carling Aff."), (Doc. 11), Ex. 1, at 8; Ex. 3, at 2), Plaintiff presented Sposato with a letter, dated March 28, 2013, from Dr. Shakeep Hussain (the "Hussain Letter"). Plaintiff claims this letter "medically clear[ed] plaintiff to return to his employment." (AC ¶ 24.) The Hussain Letter stated, in relevant part:
(Carling Aff. Ex. 6.) It was addressed "To Whom It May Concern" and said nothing about Plaintiff's fitness for employment. Sposato told Plaintiff, "I feel you are not ready to come back to work and that your job is terminated," and "you are now going through a divorce you will not be ready to start work before the deadline of April 1, 2013." (AC ¶ 26.) April 1, 2013 was the day by which Plaintiff had to return to work before he exceeded the maximum allowable 26 weeks of leave, after which, under Hospital policies, the Hospital would not guarantee an employee's job. (Carling Aff. Ex. 3, at 1.)
Plaintiff, unhappy with Sposato's decision, took the Hussain Letter to Sanchez, and with Sposato present informed Sanchez that he was ready to return to work that day. (AC ¶ 27.) Sanchez, apparently referring to the Hussain Letter, remarked that "[t]he letter does not matter," and that if Plaintiff returned to work, security would escort him out of the building. (Id.) Plaintiff claims Sanchez further opined that Plaintiff needed "more time to deal with [his] mental illness and divorce, and that more time would cause [him] to go over the time allowed to hold [his] position." (Id.) Plaintiff responded that he was currently undergoing treatment for his "mental illness," and that he was "actively in a 12 step program." (Id.) Plaintiff also requested an "accommodation to treat his mental impairment." (Id.) Sanchez responded by telling Plaintiff "to leave and not to return on April 1, 2013." (Id.) Plaintiff claims that as of March 29, 2013, the Hospital was in possession of documents showing Plaintiff was medically cleared to return to full duty on that date, (id. ¶ 29), although the AC is silent as to what they might have been, other than the Hussain Letter. Despite what Plaintiff believed amounted to "medical proof" of his ability to perform the essential elements of his job with reasonable accommodations, the Hospital "determined unilaterally that plaintiff wasn't ready to return to work," and terminated Plaintiff's employment. (Id. ¶¶ 30-32.)
After his termination, Plaintiff, pursuant to his union's collective bargaining agreement, filed a grievance regarding whether his termination was for cause. (See Carling Aff. Ex. 5.) An arbitrator for the Federal Mediation and Conciliation Service rendered a written Opinion and Award finding in favor of the Hospital. (Id.) Subsequently, on September 30, 2013, Plaintiff dual-filed an administrative complaint with the New York State Division of Human Rights ("SDHR") and the Equal Employment Opportunity Commission ("EEOC"), alleging discrimination based on "disability" and "marital status." (Id. Ex. 2.) The SDHR conducted an investigation and issued a Determination and Order After Investigation, dismissing Plaintiff's complaint and concluding that there was no probable cause to believe the Hospital engaged in the discriminatory practices complained of by Plaintiff. (See Carling Aff. Ex. 3.) The EEOC adopted those findings, and issued a right-to-sue letter on April 17, 2014. (Id. Ex. 4.)
Plaintiff filed this action on June 5, 2014, (see Doc. 1), and after a pre-motion conference on Defendant's contemplated motion to dismiss, filed the AC on August 27, 2014, (Doc. 8). Plaintiff claims the Hospital violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the Rehabilitation Act, 29 U.S.C. §§ 701-794, when it failed to provide reasonable accommodations, discriminated against him based on his disability, and retaliated against him because of his protected activity, ultimately resulting in his termination. Plaintiff demands compensatory and punitive damages, as well as injunctive relief. Defendant moves to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted.
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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." Id. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (alteration, citations, and internal quotation marks omitted). While Federal Rule of Civil Procedure 8 "marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, . . . it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Iqbal, 556 U.S. at 678-79.
In considering whether a complaint states a claim upon which relief can be granted, the court "begin[s] by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth," and then determines whether the remaining well-pleaded factual allegations, accepted as true, "plausibly give rise to an entitlement to relief." Id. at 679. Deciding whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not `shown' — `that the pleader is entitled to relief.'" Id. (alteration omitted) (quoting Fed. R. Civ. P. 8(a)(2)).
When deciding a motion to dismiss for failure to state a claim, the Court is entitled to consider:
Weiss v. Inc. Vill. of Sag Harbor, 762 F.Supp.2d 560, 567 (E.D.N.Y. 2011) (internal quotation marks omitted). A document is considered "integral" to the complaint where the plaintiff has "reli[ed] on the terms and effect of [the] document in drafting the complaint." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (emphasis omitted). If a document outside of the complaint is to form the basis for dismissal, however, two requirements must be met in addition to the requirement that the document be "integral" to the complaint: (1) "it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document;" and (2) "[i]t must also be clear that there exist no material disputed issues of fact regarding the relevance of the document." Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006).
Defendant submits: (1) Plaintiff's Verified Complaint to the SDHR, (Carling Aff. Ex 1), which was dual-filed with the EEOC, (id. Ex. 2); (2) a notice of charge from the EEOC, (id.); (3) the SDHR's Determination and Order After Investigation dismissing Plaintiff's complaint, (id. Ex. 3); (4) the EEOC's Dismissal and Notice of Rights letter, (id. Ex. 4); (5) an Opinion and Award from the Federal Mediation and Conciliation Service resulting from the union grievance filed by Plaintiff regarding his termination, (id. Ex. 5); and (6) the Hussain Letter, (id. Ex. 6). I may take judicial notice of the first four documents because they are public records, see Daniel v. Long Island Housing P'ship, Inc., No. 08-CV-1455, 2009 WL 702209, at *5 n.4 (E.D.N.Y. Mar. 13, 2009) ("The Court may consider the EEOC charges because they are public documents filed in state administrative proceedings, as well as because they are integral to [plaintiff's] [statutory discrimination claim]."); Lindner v. Int'l Bus. Machs. Corp., No. 06-CV-4751, 2008 WL 2461934, at *1 n.1 (S.D.N.Y. June 18, 2008) (taking judicial notice of plaintiff's filings with EEOC and SDHR); Muhammad v. N.Y.C. Transit Auth., 450 F.Supp.2d 198, 204-05 (E.D.N.Y. 2006) ("EEOC charge and the agency's determination are both public records, of which this Court may take judicial notice"), and may otherwise consider them because they are incorporated by reference into and integral to the AC, Muhammad, 450 F. Supp. 2d at 204 ("Courts in this Circuit have repeatedly held that when [as here, (see AC ¶ 4),] EEOC charges are expressly referred to in the pleading, they may be considered incorporated by reference.").
Further, I may take judicial notice of the arbitral award because it is an opinion issued in a prior proceeding, see Gorbaty v. Kelly, No. 01-CV-8112, 2003 WL 21673627, at *2 n.3 (S.D.N.Y. July 17, 2003), but "`only to establish the existence of the opinion, not for the truth of the facts asserted in the opinion.'" See Henneberger v. Cnty. of Nassau, 465 F.Supp.2d 176, 185 (2006) (quoting Global Network Commc'ns, Inc. v. City of N.Y., 458 F.3d 150, 157 (2d Cir. 2006) (citing cases).
Finally, with respect to the Hussain Letter, although Plaintiff does not attach it to the AC, it is integral because the AC both specifically refers to the letter several times, (see, e.g., AC ¶¶ 24, 26-27), and relies heavily upon its terms for the proposition that Plaintiff's employment was terminated despite him being "medically evaluated as being able to return to full duty," (AC ¶ 29).
As the aforementioned documents are either incorporated into the AC by reference, integral to the AC, and/or the proper subject of judicial notice, and because Plaintiff does not dispute the authenticity of any of the documents, I will therefore consider them.
All of Plaintiff's claims are brought pursuant to the ADA and the Rehabilitation Act, which prohibit employers from discriminating "against a qualified individual on the basis of disability." 42 U.S.C. § 12112(a); see 29 U.S.C. § 794(a) (setting forth the same type of prohibition).
An essential element of the first two claims is that Plaintiff be an individual with a "disability" within the meaning of the ADA. See, e.g., St. Jules v. United Parcel Serv., Inc., No. 09-CV-1201, 2010 WL 1268071, at *1 (E.D.N.Y. Mar. 31, 2010). Defendant argues that Plaintiff fails to allege that he has a qualifying disability under the ADA. (D's Br., at 19-22.)
A "disability" under the ADA is defined as: (A) a physical or mental impairment that substantially limits one or more of the 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); 29 U.S.C. § 705(20)(B). Significantly, "[m]erely having an impairment does not make one disabled for purposes of the ADA. Claimants also need to demonstrate that the impairment limits a major life activity." Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 195 (2002). Accordingly, a successful ADA plaintiff must: (1) show that he suffers from a physical or mental impairment; (2) identify an activity claimed to be impaired and establish that it constitutes a major life activity; and (3) show that his impairment substantially limits the major life activity. Colwell v. Suffolk Cnty. Police Dep't, 158 F.3d 635, 641 (2d Cir. 1998). In evaluating whether an impairment substantially limits a major life activity, "courts consider the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or long term impact" of the impairment. Ragusa v. Malverne Union Free Sch. Dist., 582 F.Supp.2d 326, 341 (E.D.N.Y. 2008) (internal quotation marks omitted), vacated in part on other grounds, 381 F. Appp'x 85 (2d Cir. 2010); see 29 C.F.R. § 1630.2(j).
The factual allegations in the AC appear to describe — and conflate — three different disabilities: (1) substance abuse, (AC ¶ 33); (2) orthopedic injuries, (AC ¶ 19-20, 39); and (3) bipolar disorder, (AC ¶ 38). None of these impairments, as described in the AC, plausibly qualifies as a disability under the ADA.
First, with respect to Plaintiff's disability based on substance abuse, (see, e.g., AC ¶ 33, 36), "past drug addiction, not merely past use, is required to make out a claim under the ADA." Buckley v. Consol. Edison Co. of N.Y., Inc., 127 F.3d 270, 274 (2d Cir. 1997) (emphasis in original), vacated on other grounds, 155 F.3d 150 (2d Cir. 1998). Here, the scant facts in the AC do not allege that Plaintiff was ever addicted, and Plaintiff therefore fails to plausibly allege that his substance abuse is an ADA-covered disability. The AC provides practically no details about Plaintiff's substance abuse, including when it started, the substance abused, the frequency or duration of the abuse, the physical symptoms (if any) resulting from refraining, or the treatment required. Moreover, Plaintiff fails to identify any major life activity his substance abuse impaired. See Skinner v. City of Amsterdam, 824 F.Supp.2d 317, 330-31 (N.D.N.Y. 2010) (drug addiction covered under ADA only when it substantially limits major life activity). Plaintiff has thus not plausibly alleged that his substance abuse was a disability within the meaning of the ADA.
Second, Plaintiff claims his October 2012 orthopedic injuries — a "shattered knee" and a "torn rotator cuff," (AC ¶ 19; see id. ¶ 39) — left him "temporarily unable to perform all of his duties,"
As Plaintiff apparently did not complain of orthopedic injuries at the time he protested his termination — approximately six months after the injuries occurred — it is not plausible that any limitations on major life activities (if they ever existed) were burdening Plaintiff at the time he was terminated.
Finally, with respect to Plaintiff's "professionally diagnosed brain and bipolar disorder," Plaintiff asserts that he had been under the treatment of medical professionals for this condition for approximately the last fifteen years of his employment, (AC ¶ 38), during which time he performed his work in a "competent manner," (id. ¶ 18), received "exemplary and satisfactorily [sic] written evaluations," (id. ¶ 37), and "had never been previously disabled," (id.). While bipolar disorder can be an impairment under the ADA, see Whalley v. Reliance Grp. Holdings, Inc., No. 97-CV-4018, 2001 WL 55726, at *4 (S.D.N.Y. Jan. 22, 2001), the AC fails to identify any major life activity that was limited by Plaintiff's specific case of bipolar disorder,
Further, nothing about the events of March 29, 2013 indicate that Plaintiff's bipolar disorder inhibited him from performing his job at the time of his termination, or any other time. The only specific references made to an infirmity that day — Plaintiff's remarks that he was in a twelve-step program and had outpatient treatment three times per week, and the Hussain Letter's reference to "sobriety" — appear to relate to substance abuse. The only documentation from a medical professional that Plaintiff provided the Hospital on March 29, 2013 was the Hussain Letter regarding sobriety. (AC ¶¶ 26-27; Carling Aff. Ex. 6.) A different doctor was apparently treating Plaintiff's bipolar disorder. (See AC ¶ 38.) If bipolar disorder were the reason Plaintiff had been out of work, one would think he would have provided a fit-for-work letter from a relevant medical professional. It thus does not appear plausible that Plaintiff's bipolar disorder limited a major life activity at the time of the alleged discrimination.
Because the only conditions identified by Plaintiff are not plausibly qualifying disabilities under the ADA, on the facts presented, Plaintiff fails to state a cognizable ADA claim with respect to disparate treatment and failure to accommodate.
Even if Plaintiff had plausibly pleaded a qualifying disability, his claims for failure to accommodate, disparate treatment (apart from termination) and retaliation (apart from termination), would have to be dismissed for failure to exhaust.
Prior to filing an ADA claim in federal court, a plaintiff must exhaust administrative remedies with the EEOC or an authorized agency. Spruill v. NYC Health & Hosp., No. 06-CV-11362, 2007 WL 2456960, at *2 (S.D.N.Y. Aug. 23, 2007), aff'd, 367 F. App'x 269 (2d Cir. 2010); Sussle v. Sirina Prot. Sys. Corp., 269 F.Supp.2d 285, 314 (S.D.N.Y. 2003). A court has jurisdiction to hear only claims that are contained in an EEOC charge or are "reasonably related" to the claims in the EEOC charge. Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998). The purpose of this requirement is to provide the EEOC "the opportunity to investigate, mediate, and take remedial action." Stewart v. I.N.S., 762 F.2d 193, 198 (2d Cir. 1985).
Defendant argues that Plaintiff failed to exhaust administrative remedies with respect to the "claims for retaliation, a failure to provide reasonable accommodation, and disparate treatment." (D's Br. at 10-11.) Those claims consist of allegations that Plaintiff was: denied housing, break time and working-hours accommodations; demoted; and otherwise treated disparately compared to a coworker. In contrast to the AC, the complaint Plaintiff submitted to the SDHR and EEOC contains allegations of discrimination based solely on Defendant's decision to terminate his employment. Specifically, the complaint details the sequence of events on March 29, 2013 in which Plaintiff: gave Sposato and Sanchez the Hussain Letter; told Sposato he was "ready, willing and able to start work [on March 29, 2013];" and told both Sposato and Sanchez that he has "out-patient treatment in place 3 nights a week, after the hours of my work day here . . . I am continuing to work[] through this issue . . . [and] I am actively in a 12 step program." (Carling Aff. Ex. 1.) Thus Plaintiff's claims of retaliation, disparate treatment, and failure to accommodate may proceed only if they are reasonably related to the complaint filed with the SDHR and EEOC.
"[A] claim is considered reasonably related if the conduct complained of would fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made." Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (internal quotation marks omitted). The Court's focus in that regard is on the factual content of the administrative complaint, and whether the conduct complained of gave the agency "adequate notice to investigate discrimination on [multiple] bases." Id. (internal quotation marks omitted). The reasonably related doctrine does not, however, "`permit a plaintiff to bring suit based on alleged prior acts . . . that could have been, but were not, asserted in the EEOC charge that was filed.'" Sussle, 269 F. Supp. 2d at 315 (quoting Hall v. City of N.Y., No. 00-CV-8967, 2002 WL 472057, at *4 (S.D.N.Y. Mar. 27, 2002)).
Plaintiff does not argue that the discrimination allegations in the AC, not discussed in the administrative complaint, are reasonably related to the administrative complaint. Indeed, Plaintiff nowhere addresses Defendant's arguments regarding failure to exhaust.
There is literally nothing in Plaintiff's administrative complaint that could conceivably have reasonably given rise to an investigation of Plaintiff's requests regarding housing or any other accommodation.
Finally, Plaintiff's administrative complaint contains nothing to put the agencies on notice of his disparate treatment claims arising from Plaintiff's supervisor having "made special arrangements" for Plaintiff's coworker after that individual's second driving while intoxicated offense. (AC ¶¶ 43-45.)
Accordingly, Plaintiff's claims for failure to accommodate, retaliation (including his claim that his termination amounted to retaliation under the ADA) and disparate treatment (short of termination) — all claims he could have raised in his administrative complaint — are not reasonably related to that complaint and are dismissed for failure to exhaust available administrative remedies.
Defendant concedes that Plaintiff exhausted the only claim in his administrative complaint: that the Hospital discriminated against him by not permitting him to return to work. I address it in an excess of caution, even though Plaintiff has not plausibly pleaded that he suffered from a qualifying disability.
Plaintiff does not quarrel with the Hospital's policy of holding an employee's job only until he or she misses 26 weeks in any 52-week period (which, after all, is more generous than federal law requires). Nor does he suggest that it is discriminatory or otherwise unreasonable for the Hospital to require that the returning employee provide a doctor's note regarding his or her fitness for duty. Rather, his complaint is that the Hospital discriminated against him by failing to reinstate him despite his presentation of a fitness-for-duty note.
The utter implausibility of this claim is revealed by simple reference to that note — i.e., the Hussain Letter. (Carling Aff. Ex. 6.) It says nothing more than that Plaintiff participated in some sort of program, had no "major" behavioral issues, developed "some" insight, and would likely "maintain improvement" if he were to continue with outpatient treatment and maintain sobriety. (Id.) It says nothing at all about Plaintiff's fitness to return to work. Indeed, it is not even addressed to his employer, nor does it otherwise indicate that the author is aware of Plaintiff's employment or what that employment entails. Nor does it address Plaintiff's issues other than substance abuse. And it is entirely conditional. An employer reading this note would have no way of knowing if the employee had shown behavioral issues that might interfere with his work even if they were not considered "major" in the context of the program, or whether the insight the employee had developed was complete enough for him to return to work without incident, or whether the improvement the employee had shown needed to be augmented before he was able to work, or whether the continued treatment he required would leave time for him to work, or how likely it was that he would maintain his sobriety and follow up with treatment. It is simply not plausible that regarding this note as insufficient to show fitness for duty was discrimination against a disabled employee rather than simply a reasonable interpretation of the doctor's words. Accordingly, even if Plaintiff were assumed to have a qualifying disability, the AC fails to state a plausible claim.
Leave to amend a complaint should be freely given "when justice so requires." Fed. R. Civ. P. 15(a)(2). It is "within the sound discretion of the district court to grant or deny leave to amend." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). "Leave to amend, though liberally granted, may properly be denied for: `undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.'" Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
In a letter dated June 25, 2014, Defendant identified several deficiencies in Plaintiff's original complaint. (Doc. 5.) Among other things, Defendant highlighted that: (1) the Hussain Letter was not sufficient to clear Plaintiff for work, (id. at 1-2); (2) the retaliation claims with respect to the Hospital's enforcement of its leave policy were conclusory, (id. at 2); and (3) the "prolix" complaint generally confused, rather than illuminated, the bases for Plaintiff's claims, (id.). At the July 31, 2014 pre-motion conference, the parties and the Court further discussed the deficiencies in the original complaint, concentrating on its unspecific and generally confusing allegations regarding, among other things: (1) the disabilities Plaintiff claims to have had; (2) the accommodations requested by Plaintiff; (3) the disparate treatment alleged; and (4) the protected activity that occurred before the adverse employment action. The Court also emphasized its concern with the AC's untenable lack of factual allegations. Plaintiff's failure to fix deficiencies in his previous pleadings, after being provided with full notice of the deficiencies, is alone sufficient ground to deny leave to amend sua sponte. See In re Eaton Vance Mut. Funds Fee Litig., 380 F.Supp.2d 222, 242 (S.D.N.Y. 2005) (denying leave to amend because "the plaintiffs have had two opportunities to cure the defects in their complaints, including a procedure through which the plaintiffs were provided notice of defects in the Consolidated Amended Complaint by the defendants and given a chance to amend their Consolidated Amended Complaint," and "plaintiffs have not submitted a proposed amended complaint that would cure these pleading defects"), aff'd sub nom. Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 118 (2d Cir. 2007) ("[P]laintiffs were not entitled to an advisory opinion from the Court informing them of the deficiencies in the complaint and then an opportunity to cure those deficiencies.") (internal quotation marks omitted); see also Ruotolo, 514 F.3d at 191 (affirming denial of leave to amend "given the previous opportunities to amend"). Further, Plaintiff in his opposition has not requested leave to file a second amended complaint or suggested that he is in possession of facts that would cure the deficiencies identified in this opinion. A plaintiff need not be given leave to amend if he fails to specify how amendment would cure the pleading deficiencies in his complaint. See TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014). Accordingly, I decline to grant Plaintiff leave to amend sua sponte.
For the reasons set forth above Defendant's motion to dismiss is GRANTED. The Clerk of Court is respectfully directed to terminate the pending motion, (Doc. 9), and close the case.
Further, the Alexander court was concerned that "the factfinding process in arbitration usually is not equivalent to judicial factfinding." Id. at 57. As a result, parties to arbitration may not be considering the consequences of judicial issue preclusion when arguing their cases before an arbitrator. In the end, Alexander adopted "no standards as to the weight to be accorded an arbitral decision," and instead left the decision to "the court's discretion with regard to the facts and circumstances of each case." Id. at 60 n.21. Accordingly, I find it appropriate to decline Defendant's invitation to "give preclusive effect to the arbitrator's findings of fact," (D's Br., at 9), and will instead accept as true the facts as pleaded in the AC. See Giles v. City of N.Y., 41 F.Supp.2d 308, 313 (S.D.N.Y. 1999) ("[A] post-arbitration proceeding is not bound by the arbitrator's factual conclusions.") (internal quotation marks omitted).
Plaintiff also says he was retaliated against by "being demoted" from "shop Stewart [sic]" and "being assigned to the maintenance shop," (AC ¶ 46), by his boss, Ozzie Dahl, (Id. ¶ 43). Plaintiff fails to provide the date on which he was demoted, but claims it occurred "prior to . . . March 29, 2013." (Id. ¶ 46.) It is impossible to discern when Plaintiff was demoted. For all one can tell, it could have occurred years before. Moreover, for the sake of argument, even if Plaintiff was demoted on February 18, 2013 — a date he concedes in his administrative complaint he was at work — and even if Plaintiff was engaged in some type of ADA-protected activity, he still fails to allege any facts showing that Dahl was aware that he was engaging in ADA-protected activity. Plaintiff also claims that Dahl referred to him as an "overpaid asshole" after learning that Plaintiff "complain[ed] to [a] union representative." (Id. ¶ 46.) But, in light of the AC's failure to specify the date that Dahl's remark was made or an instance in which Plaintiff complained to his union other than the date on which he filed his grievance, the only reasonable conclusion is that Dahl was referring to Plaintiff's grievance filing, which occurred after Plaintiff's termination. In any event, Plaintiff does not allege that either his union grievance or Dahl's remark made any reference to a disability, and the utter lack of context in the AC does not otherwise spark an inference of discrimination. Finally, a lone harsh remark hardly amounts to retaliation. Cf. Wrobel v. Cnty. of Erie, 692 F.3d 22, 31 (2d Cir. 2012) (de minimis slights and insults do not amount to retaliation). Thus, Plaintiff's claims with respect to Dahl would not be enough to state a plausible ADA retaliation claim.
For the sake of thoroughness, I address Plaintiff's claim that his "threat of subsequent filing of charges with the EEOC and [SDHR and/or his union], was a motivating factor and made a difference in the decision to discharge plaintiff." (Id. ¶ 56.) Aside from the wholly conclusory nature of this allegation, Plaintiff nowhere makes a plausible or specific claim that he made any of these threats before the Hospital informed him that he would be terminated. Plaintiff therefore cannot show that the Hospital was aware of any alleged protected activity, or any other indicia of causality, between the allegedly protected activity and adverse employment action. In the end, absent any non-conclusory assertions that protected activity occurred before the adverse employment action, all of Plaintiff's retaliation allegations fail to meet the basic plausibility standard of Iqbal, 556 U.S. at 678. He simply fails to set forth facts suggesting his termination was a result of anything other than application of the Hospital's standard policy. Accordingly, even if Plaintiff exhausted his remedies with respect to his retaliation claims, they would be dismissed because Plaintiff fails to allege the essential facts necessary to plausibly assert an ADA retaliation claim.
