Calise v. Casa Redimix Concrete Corp.

BRIAN CALISE, Plaintiff, v. CASA REDIMIX CONCRETE CORP., Defendant.

No. 20 Civ. 7164 (PAE)

United States District Court, S.D. New York

February 4, 2022

OPINION & ORDER

PAUL A. ENGELMAYER, UNITED STATES DISTRICT JUDGE

This is a discrimination and retaliation case brought by a cement truck driver. Brian Calise, who worked for defendant Casa Redimix Concrete Corporation (“Casa”) from March 2017 until July 9, 2019, alleges that he was discriminated and retaliated against because of his disability, in violation of the Americans with Disabilities Act, 42 U.S.C § 12101 et seq. (the “ADA”), New York State Human Rights Law, New York Exec. Law § 290 et seq. (“NYSHRL”), and New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 et seq. (“NYCHRL”), and that Casa interfered with his family leave, in violation of the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. (“FMLA”).

Pending now is Casa's motion to dismiss certain claims pursuant to Federal Rule of Civil Procedure 12(b)(6)-specifically Calise's post-employment ADA, NYSHRL, and NYCHRL retaliation claims. For the following reasons, the Court denies Casa's motion.

L Background

A. Factual Background^[1]

1. The Parties

Calise a resident of Staten Island, New York, started driving cement trucks for Casa in March 2017. AC ¶ 10. He has experienced opioid addiction, and takes suboxone, a prescription drug “designed to act as a pain killer and to wean a patient off opioids, ” or to “act as a much more functional pain killer” and alleviate withdrawal symptoms from opioids. Id. ¶¶ 3, 12, 14.

Casa is a company based in New York with at least 15 employees. Its principal place of business is at 886 Edgewater Road, Bronx New York (the “Facility”). Id. ¶ 4.

2. Calise's Use of Suboxone

Calise began taking suboxone after developing an opioid addiction after “smashing his hand in a car accident” in 2014. Id. ¶ 14. In December 2017, while working for Casa, he was further injured in a way that “caused severe and unremitting pain, necessitating both shoulder and neck fusion surgery.” Id. The AC alleges that whenever Calise injected suboxone, a notification was sent to Casa, so that Casa was “well aware” that he used suboxone. Id. ¶ 15.

3. The Accident

On July 9, 2019, Calise was responsible for maneuvering the cement truck he drove for Casa, a “difficult task.” Id. ¶ 10. He was accused that day of having been involved, while driving the truck, in a “slight accident” with a parked car at the Facility. Id. The AC alleges that Calise did not know about the claim of this accident until Casa told him about it, and that there was no police report about the accident, injuries to any person, or damage to the truck. Id.

4. Calise's Termination

On July 9, 2019, the same day as the alleged accident, Calise was ordered by Casa to produce his prescription drug records from CVS Pharmacy; he did so. Id. ¶ 11. The records showed that Calise was taking suboxone. See id. ¶ 12. After receiving the records, three people “met to discuss [Calise's] fate”: “Will, the safety manager”; “Joe, ” the local union's shop steward, and Mauro Perciballi, Casa's President. Joe then called Calise and fired him. Id. ¶ 11.

The AC alleges that Calise was fired because “it was ‘discovered'” that Calise was taking suboxone, even though Casa already knew of his suboxone use. Id. ¶¶ 12, 15. Otherwise, the AC alleges, Calise was good at his job and had a good track record working for Casa. Id. ¶ 10.^[2]

5. Events Following Calise's Termination

On July 10 and July 17, 2019, ^[3] after the accident and his termination, Calise was given two drug tests; he tested negative on both “for any prescription medications, including suboxone.” Id. ¶ 13 (emphasis omitted). On July 19, 2019, Calise was “cleared to drive by Dr. Dominic Pompa.” Id.

On August 1, 2019, Calise alleged disability discrimination in a letter, apparently sent to Casa's counsel. See id. ¶ 44; see also Ltr. He also alleged such discrimination in a charge to the Equal Employment Opportunity Commission (“EEOC”). AC ¶ 44. On August 30, 2019, Calise alleges, he was sent a letter by or “on behalf of' Casa, “threatening to hold [Calise] ‘directly financially responsible'” if he sued Casa. Id. ¶ 16. The letter closed by stating:

If suit is filed, Casa Redimix intends to vigorously defend against the frivolous claims and will seek to hold Mr. Calise and your firm directly financially responsible for its attorneys' fees and costs in defending against his claims. Please be guided accordingly.

Id. (emphasis omitted).

After Casa fired Calise, he applied to other positions as a cement truck driver. Id. ¶ 17. In August 2019, he applied to Tec Crete Ready Mix LLC (“Tec Crete”). There, he was told by Mike Nucci and an unidentified “older ... gentleman” that he would not be hired because they would face “repercussions” from Casa president Perciballi. Id. ¶ 18. When Calise asked “what Perciballi had to do” with his job application, Nucci responded that “we are all connected in some way, ” and stated that Casa had called Tec Crete and asked the company not to hire Calise. Id.

Calise also applied to work for City Ready Mix Corporation (“City”). There, “Jazz, ” a dispatcher, told Calise that Will-the safety manager at Casa-had told Jazz that Perciballi had spoken to City's owner, who was also a relative of Perciballi's, and that their conversation “caused City not to hire” Calise. Id. ¶ 20. As a result, Calise “was not welcome there no matter how busy City was.” Id.

The AC alleges that these episodes reveal that Perciballi intervened to prevent Calise from getting a job, “in retaliation for seeking redress for his discrimination claim, ” Id. ¶¶ 19, 21, and “constitute a pattern of concerted activity designed to retaliate against [Calise] by discouraging him from filing suit and by attempting to deny him the right to work in his chosen occupation.” Id. ¶ 22. B. Procedural History

On September 2, 2020, Calise filed the original Complaint. Dkt. 1. On November 13, 2020, Casa answered. Dkt. 10. On March 26, 2021, the Honorable Alison J. Nathan, United States District Judge, issued a civil case management plan and scheduling order. Dkt. 19. On May 7, 2021, Calise filed a motion to amend or correct the complaint. Dkts. 22-24; see Dkt. 233. On May 12, 2021, Judge Nathan granted the motion. Dkt. 25.^[4] On July 6, 2021, Casa filed a motion to dismiss and supporting submissions. Dkt. 28. On July 15, 2021, Judge Nathan ordered Calise to amend his complaint or oppose the motion to dismiss. Dkt. 30.

On July 21, 2021, Calise filed the operative amended complaint. It brings disability discrimination and post-employment retaliation claims under each of the ADA, NYSHRL, and NYCHRL, and a claim for violating the FMLA. Dkt. 33; see Dkt. 34 (“AC”) (corrected filing). On August 4, 2021, Casa filed the instant partial motion to dismiss, Dkt. 35, a brief in support, Dkt. 35-1 (“Def. Mem.”), and the certification of Sandra T. Jimenez, Dkt. 35-2 (“Jimenez Deci.”). On August 18, 2021, Calise filed a memorandum of law in opposition to the motion. Dkt. 37 (“Pl. Opp'n”). On August 25, 2021, Casa filed a reply. Dkt. 39 (“Reply”). On December 10, 2021, the action was reassigned to this Court.

H. Applicable Legal Standard

To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead “enough facts to state a claim to relief that is plausible on its face.” BellAtl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will only have “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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). By contrast, a complaint will not “suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (internal quotation marks and alterations omitted). Such factual enhancement is necessary to “nudge[] [a] claim[] across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.

Although this standard “does not impose a probability requirement at the pleading stage, ” it does require a complaint to plead “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence” to support plaintiffs claims. Id. at 556. Where a complaint fails to do so, “[t]his basic deficiency should be exposed at the point of minimum expenditure of time and money by the parties and the court.” Id. at 558 (ellipsis omitted) (quoting 5 Wright & Miller, Federal Practice and Procedure § 1216). Otherwise, “the threat of discovery expense will push cost-conscious defendants to settle even anemic cases before reaching those proceedings.” Id. at 559. “Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the [Court] to draw on its judicial experience and common sense. But where the well-pled facts do not permit inferring more than the mere possibility of misconduct, ” the complaint has not shown an entitlement to relief and must be dismissed. Iqbal, 556 U.S. at 679 (citation omitted). Although the Court must accept as true all well-pled factual allegations and draw all reasonable inferences in the plaintiffs favor, Steginsky v. Xcelera Inc., 741 F.3d 365, 368 (2d Cir. 2014), that tenet “is inapplicable to legal conclusions, ” Iqbal, 556 U.S. at 678.

III. Discussion

Casa's motion to dismiss takes aim only at Calise's post-employment retaliation claims, and at these only insofar as they are based on the August 30, 2019 letter from Casa's counsel that Calise terms “threatening.” Casa argues, first, that the letter is inadmissible under Federal Rule of Evidence 408 and second, that, as a matter of law, the letter was not an adverse employment action and...