Johnson v. City of New York

1

DELOIS JOHNSON, Plaintiff, v. THE CITY OF NEW YORK, Defendant.

No. 23-cv-06804 (ER)

United States District Court, S.D. New York

September 27, 2024

OPINION & ORDER

EDGARDO RAMOS, U.S.D.J.

Delois Johnson brings this action against her employer, the City of New York (“City”), alleging that she experienced employment discrimination, a hostile work environment, and retaliation based on her disability in violation of the Americans with Disabilities Act (“ADA”). Doc. 19 (“Second Amended Complaint” or “SAC”) ¶ 1.

Before the Court is the City's motion to dismiss the SAC pursuant to Federal Rule of Civil Procedure 12(b)(6). Doc 23. For the reasons set forth below, the City's motion is GRANTED as to the reasonable accommodation and hostile work environment claims, and DENIED as to Johnson's discrimination and retaliation claims. The City's request to deny further amended complaints is also DENIED.

I. BACKGROUND

A. The Court Will Consider All of the Exhibits Filed by the City

As a preliminary matter, the City asks the Court to consider seven extrinsic documents submitted in support of their motion to dismiss: (1) Johnson's complaint with the New York State Division of Human Rights (“NYSDHR”) dated June 22, 2022, alleging discriminatory employment practices; (2) NYSDHR's Determination and Order after Investigation filed February 27, 2023, finding no probable cause for Johnson's discrimination claim and notifying Johnson of her right to request a review by the Equal Employment Opportunity Commission (“EEOC”); (3) Dr. Ina S. Itzkovitz's note dated April 11, 2022; (4) the letter issued by the Office of Diversity and Equal Opportunity Affairs (“EEO”) denying Johnson's request for accommodation because employees were no longer required to wear face coverings while at work; (5) the New York City Department of Citywide Administrative Services' (“NYCDCAS”) Directive effective on March 7, 2022, allowing the City's employees to remove their face coverings in the workplace; (6) Dr. Itzkovitz's note dated May 3, 2022; and (7) the EEO's email to Johnson dated July 21, 2022, stating her reasonable accommodation request had been approved for the period June 30 to August 30, 2022. Docs. 24-1-7.

In adjudicating a motion to dismiss, a court may consider only the complaint, exhibits to the complaint, any statements or documents incorporated in it by reference, and documents integral to it. ASARCO LLC v Goodwin, 756 F.3d 191, 198 (2d Cir. 2014) (quoting In re Thelen LLP, 736 F.3d 213, 219 (2d Cir. 2013)). “To be incorporated by reference, the complaint must make a clear, definite[,] and substantial reference to the documents[.]” Bill Diodato Photography L.L.C. v. Avon Products, Inc., No. 12 Civ. 847 (RWS), 2012 WL 4335164, at *3 (S.D.N.Y Sept. 21, 2012) (citation omitted). And “[t]o be integral to a complaint, the plaintiff must have (1) actual notice of the extraneous information and (2) relied upon the documents in framing the complaint.” Id. (alteration in original) (citation omitted). Thus, where a document is partially quoted in a complaint, the Court may generally consider its full text. San Leandro Emergency Med. Grp. Profit Sharing Plan v. Philip Morris Companies, Inc. 75 F.3d 801, 808 (2d Cir. 1996). Further, “a plaintiff's reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration of the document on a dismissal motion; mere notice or possession is not enough.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (emphasis in original) (citation omitted). Finally, “even if a document is ‘integral' to the complaint, it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document.” Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006) (citations omitted).

The Second Circuit has “largely” limited the scope of “integral” documents to “written instruments”-i.e., those legal documents that, in writing, define a party's “rights, duties, entitlements, or liabilities”-as compared to evidence that merely makes a claim more or less likely. Lynch v. City of New York, 952 F.3d 67, 79 (2d Cir. 2020) (citations omitted). But communications whose legal effect forms the basis of a cause of action may also be considered on a motion to dismiss. See Lopez-Serrano v. Rockmore, 132 F.Supp.3d 390, 400 (E.D.N.Y. 2015) (finding text messages submitted in support of defendant's motion to dismiss incorporated by reference and integral to the complaint).

Johnson explicitly incorporates by reference the doctor's notes of April 11, 2021 and May 3, 2022 in the SAC. SAC ¶ 12, 24. She also explicitly mentions and attaches the EEOC Right to Sue letter to her complaint. Id. ¶ 4; Doc. 19-1. Johnson submitted June 22, 2022 complaint to NYSDHR, so the Court may take judicial notice of the NYSDHR charge and its determination because they are “public documents filed in state administrative proceedings” and are integral to Johnson's claims. Doc. 24-1 at 1; see Clarke v. White Plains Hosp., No. 13 Civ 5359 (CS), 2015 WL 13022510, at *3 (S.D.N.Y. Apr. 22, 2015) (“EEOC charge and the agency's determination are both public records, of which this Court may take judicial notice”). When discussing the April 29, 2022, denial of her request, Johnson also incorporates by reference the EEO letter denying her request and explaining that face coverings were no longer required in the workplace. SAC ¶ 25. Subsequently, the NYCDCAS Directive allowing the City's employees to remove their face coverings in the workplace, which is the reason for the EEO denial letter, and the July 21, 2022, EEO email approving that same April 2022 accommodation request are both integral to the complaint. Accordingly, the Court may properly consider all the City's proposed exhibits.

B. Factual Background

The following facts are based on the allegations in the SAC, which the Court accepts as true for purposes of the instant motion. See Koch v Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012).

Johnson has suffered from asthma and chronic bronchitis since at least 2003. SAC ¶ 7. Her symptoms include a chronic cough, sleep apnea, and breathing troubles. Id. Johnson uses a daily inhaler, occasionally takes steroids and antibiotics, and requires medical attention at least four times a year due to asthma attacks. Id.

In December 1984, Johnson started working at the New York City Housing Authority as a clerical associate. Id. ¶ 8. In November 2015, she transferred to the City of New York Human Resources Administration/Department of Social Services (“NYCHRA”) as a contract specialist. Id. ¶ 9. On September 13, 2021, NYCHRA instituted a policy in response to the COVID-19 pandemic that required all employees to wear masks while in the office. Id. ¶ 11.

On December 28, 2021, due to her asthma and bronchitis, Johnson requested to be able to work remotely. Id. ¶ 12. Her doctor, Dr. Itzkovitz, provided a note to NYCHRA advising that if Johnson wore a face mask for periods even as short as 15 minutes, her respiratory symptoms would worsen because it impacted her ability to breathe. Id. On that same day, Jonson's supervisor, Jay Gorman, sought to deny her request, indicating that it was “[n]ot recommended.” Id. ¶ 13. Johnson alleges that he did not engage in any cooperative dialogue with her. Id. Gorman also informed Johnson that she needed to use sick leave until NYCHRA made a final determination on her accommodation request. Id. ¶ 14. As a result, Johnson was required to use eight sick days that were never returned to her. Id.

On January 5, 2022, Johnson went to the office of NYCHRA commissioner, Gary Jenkins, to complain about the discrimination and failure to accommodate she had been experiencing. Id. ¶ 15. Jenkins' receptionist took Johnson's information and had Mark Neal contact her the next day. Id. On January 6, 2022, Neal advised Johnson that Monique Quinones, a NYCHRA Equal Employment Opportunity (“EEO”) supervisor, would call her. Id.

During a January 10, 2022, phone call, Johnson complained to Quinones that no one had discussed her request for a reasonable accommodation with her. Id. ¶ 16. Johnson further complained that she was being retaliated against by being forced to use her sick days. Id. On that same day, Quinones advised Johnson that NYCHRA had granted her request to work remotely until April 30, 2022, as per her doctor's recommendation. Id. ¶ 17.

On January 11, 2022, Gorman mistakenly informed Johnson that she could no longer use flextime while working remotely, but upon further review, he confirmed with Johnson later that same day that she was permitted to continue using flextime. Id. ¶ 18; Doc. 24-2 at 2.^[1] Prior to requesting a reasonable accommodation for her disabilities, Johnson was permitted to use flextime like any other employee. SAC ¶ 18.

On January 19, 2022, Johnson filed a complaint with NYCHRA's EEO office about NYCHRA's discriminatory and retaliatory actions. Id. ¶ 19. The City interviewed Johnson but took no other action with respect to her complaint. Id.

On February 10, 2022, Gorman threatened to deduct pay from Johnson's time sheet, claiming she failed to timely respond to an email. Id. ¶ 20. However, as Johnson informed Gorman, she had technical issues and was unable to see his email. Id.^[2] On February14, 2022, Johnson complained to NYCHRA executive director and Gorman's supervisor, Jaclyn Moore, about the discrimination and retaliation she experienced. Id. ¶ 21. Johnson also asked to be transferred to a different supervisor. Id. Moore allegedly did not respond to the complaints or take any further action. Id.

On March 7, 2022, a New York City Department of Citywide Administrative Services' (“NYCDCAS”) directive, lifting the City's...