Dechberry v. N.Y.C. Fire Dep't

124 F.Supp.3d 131

Eileen DECHBERRY, Plaintiff,

v.NEW YORK CITY FIRE DEPARTMENT, Defendant.

No. 14–CV–2130 (KAM)(SMG).

United States District Court, E.D. New York.

Signed Aug. 14, 2015.

Eileen Dechberry, Staten Island, NY, pro se.

David Mou, NYC Law Department, New York, NY, for Defendant.

MATSUMOTO, District Judge.

Plaintiff Eileen Dechberry ("plaintiff") commenced this action, pro se, on April 2, 2014, against defendant, the New York City Fire Department ("FDNY" or "defendant") pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101 et seq., and the New York City Human Rights Law Plaintiff alleges employment discrimination on the basis of gender and disability, and that her employment was terminated without due process. Specifically, plaintiff alleges that she was suffered discrimination, retaliation, and a hostile work environment due to her gender and disability. (ECF No. 1, Complaint ("Compl.") ¶¶ 4–7.)

Pending before this court is defendant's unopposed motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6).¹ For the reasons set forth herein, the court grants defendant FDNY's motion to dismiss the Complaint.

BACKGROUND

I. Documents Considered

The following facts are drawn primarily from the plaintiff's Complaint, which the court must assume to be true for the purpose of considering defendants' Motion to Dismiss pursuant to Federal Rules of Civil Procedure ("Rule") 12(b)(6). (See generally Compl.) Additionally, where indicated, the Complaint's factual allegations are supplemented by facts and information drawn from documents external to the Complaint, which plaintiff explicitly relies upon in her Complaint or that are within the purview of judicial notice. These external documents have been provided to the court as attachments the Complaint and to the defendants' motion to dismiss. (ECF No. 1, Complaint; 23, Defendant's Motion to Dismiss, Defendant's Memorandum of Law in Support of its Motion to Dismiss ("Def.Mem."), and Declaration of David Mou in Support of Defendant's Motion to Dismiss ("Mou Decl.").)

"Generally, consideration of a motion to dismiss under Rule 12(b)(6) is limited to consideration of the Complaint itself." Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir.2006). "A complaint is deemed to include any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are ‘integral’ to the complaint." Pesserillo v. Nat'l Grid, 78 F.Supp.3d 551, 554 (E.D.N.Y.2015) (quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir.2004) ) (deeming prior Agreement and General Release entered into by plaintiff to be incorporated into the complaint by reference, particularly because it was "integral to [plaintiff's] ability to pursue his cause of action").

Moreover, "affirmative defenses, including the enforcement of a general release, are properly considered by a court as part of a motion to dismiss under Rule 12(b)(6)." WSP USA Corp. v. Marinello, No. 13–CV–4591, 2013 WL 6704885, at *3 (S.D.N.Y. Dec. 19, 2013) (citing Tromp v. City of New York, 465 Fed.Appx. 50, 51–52 (2d Cir.2012) ) (dismissing claims pre-dating the general release). Furthermore, "matters judicially noticed by the District Court are not considered matters outside the pleadings." Gilbert v. N. Am. Airlines, No. 12–CV–523, 2014 WL 1271057, at *1 (E.D.N.Y. Mar. 26, 2014) (quoting Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 426 (2d Cir.2008) ). A "court may take judicial notice of a document filed in another court—not for the truth of the matter asserted in the other litigation, but rather to establish the fact of such litigation and related filings." Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir.1998) ; see Staehr, 547 F.3d at 426 ("[I]t is proper to take judicial notice of the fact that press coverage, prior lawsuits, or regulatory filings contained certain information, without regard to the truth of their contents."); Reisner v. Stoller, 51 F.Supp.2d 430, 440 (S.D.N.Y.1999) ("The court may ... take judicial notice of matters of public record, such as pleadings and court orders from prior litigation between the parties."). A district court may also "take judicial notice of admissions in pleadings and other documents in the public record filed by a party in other judicial proceedings that contradict the party's factual assertions in a subsequent action." Landow v. Wachovia Sec., LLC, 966 F.Supp.2d 106, 119 (E.D.N.Y.2013) (citing Harris v. New York State Department of Health, 202 F.Supp.2d 143, 173 n. 13 (S.D.N.Y.2002) ).

II. Factual Background

Plaintiff was a former Emergency Medical Technician ("EMT") with the Emergency Medical Services ("EMS") of the FDNY from March 10, 2006 until September 3, 2013, with an "exemplary performance" and "tardiness" record. (Compl. at 11.)²

Plaintiff alleges that, beginning in 2011, the FDNY "intentionally and willfully discriminated against [her] in [her] employment based upon [her] gender, created a hostile working environment and retaliated against [her] because [she] engaged in a protected activity of complaining to the EEO [sic ]" and filing her 2011 lawsuit. Plaintiff also claims disability discrimination. (Compl. at 7, 15.) Plaintiff alleges that she made "numerous complaints, both to her supervisors as well as the internal office of the Equal Employment Opportunity" within the FDNY, regarding "disrespectful treatment, retaliation and harassment which has created ... a hostile work environment." (Compl. at 11.) Plaintiff claims that "[t]he conduct of her immediate supervisors, Lt. Lori Mazzeo and Lt. Irene Kruten ... is severe and pervasive, creating a hostile work environment that a reasonable person would consider intimidating, abusive and hostile." (Compl. at 11.) She also contends that "[e]ven though [defendants] were aware of [her] complaints and the existence of a hostile work environment, no actions were taken ... in an effort to correct the discriminatory conduct." (Compl. at 15.) Plaintiff cites the following events in support of her claims.

A. Allegations Pre–Dating the General Release

On or about March 7, 2011, plaintiff returned to work and was informed she would need to be cleared by a doctor to be re-certified for CPR, a requirement of her EMT position at the FDNY. (Compl. at 11.) Plaintiff asserts that she was required to undergo rigorous testing for six hours to obtain her recertification, and that she complained to her supervisor, Lieutenant Chan, regarding the "abnormally rigorous" testing and plaintiff's physical impairments. (Id. ) Lieutenant Chan instructed plaintiff to obtain a medical diagnosis and doctor's note. Plaintiff was subsequently treated by a physician and diagnosed with "upper extremity pain tendonitis, requiring rest, icing, and anti-inflammatory medication." (Compl. at 11.)

Despite having provided a doctor's note, plaintiff was required to perform the CPR test again the following day. Although she complained of "jolting pains" in her shoulders, wrists and arms, plaintiff was instructed that she would "have to finish the procedure or else will not be able to return to work" and would "have to keep coming back until [she] pass[ed]." (Compl. at 12.) Plaintiff alleges that as a result of this "rigorous testing," she could not feel her fingers or palm, could not move her shoulders, and had no sensation in her right hand, while her left hand was "completely black and blue." (Id. )

Plaintiff alleges that she was hospitalized the following morning and notified her union representative about the events and her injuries. (Compl. at 12.) She was diagnosed with severe tendonitis, injuries to her left arm, and severe swelling, requiring a cast up to her shoulder on her left hand. (Compl. at 17.) Moreover, while she was waiting to fill out Line of Duty Injury ("LODI") papers, plaintiff alleges that she overheard an employee "yell[ ] to Chief Swithers" that plaintiff is "small, she can't do it [CPR]" (Compl. at 17 (correction in original).) Plaintiff further alleges that she was "rushed to the emergency room" a few nights later. (Id. )

Plaintiff alleges that she was ultimately denied LODI status by her superior, Chief Swithers, "for no legitimate reason, despite [her] serious and overt hand injuries." (Compl. at 14.) She indicates that she continued her efforts to be approved for LODI, and was ultimately told by a compensation representative that she was "not eligible for LODI because of a minor technical error namely because the LODI package that the academy filled out stated that the injury occurred on March 3rd, whereas the date of injury on the witnesses' statements and [plaintiff's] statement was March 2nd." (Compl. at 17.) Although she appealed to Chief Swithers that this was only a "technical error that could have been quickly and easily fixed," Chief Swithers "refused to allow LODI benefits and denied surgery." (Id. ) Plaintiff alleges that "[t]he significant increase in severity of [her] injury would not have occurred but for Chief Swither's decision to deny the LODI benefits and deny and delay my surgery." (Id. ) Moreover, plaintiff had an "MRI for which she was forced to pay out of pocket as [her] LODI had still not been approved." (Id. )

On or about October 12, 2011, plaintiff complained to the FDNY EEO³ about Captain Knight's discrimination and harassment. (Compl. at 16.) Plaintiff alleges that Captain Knight instructed a coworker not to assist plaintiff, who was sick in the locker rooms, however, plaintiff fails to provide a timeframe for this event. (Id. ) Plaintiff alleges that at this time, she had requested assistance from a coworker to help her to the bathroom, but that Captain Knight interfered, instructing the coworker not to assist plaintiff, as plaintiff was "refusing patient care, all of...