McPherson v. DeJoy

JENNIFER MCPHERSON, Plaintiff, v. LOUIS DEJOY, POSTMASTER GENERAL, Defendant.

No. 19 CV 7139 (GRB) (LB)

United States District Court, E.D. New York

August 3, 2021

REPORT AND RECOMMENDATION

LOIS BLOOM UNITED STATES MAGISTRATE JUDGE

Pro se plaintiff Jennifer Mcpherson brings this employment discrimination case against Louis DeJoy, Postmaster General of the United States (“defendant”), under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq. and the Americans with Disabilities Act (“ADA”) 42 U.S.C. § 12112 et seq. Plaintiff alleges that defendant discriminated against her by terminating her failed to accommodate her disability, subjected her to unequal terms and conditions of employment, and retaliated against her. Complaint (hereinafter “Compl.”) ECF No. 1. Defendant moves to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6), arguing that the Court lacks subject matter jurisdiction and that plaintiff fails to state a claim upon which relief can be granted. ECF No. 17. The Honorable Gary R. Brown referred the motion to me for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the following reasons, I respectfully recommend that defendant's motion should be granted in part and denied in part.

BACKGROUND

Plaintiff began working for the United States Postal Service (“USPS”) as a mail handler in 2006. Complaint, ECF No. 17-3 ¶ 1.^[1] In April of 2014, plaintiff requested a reasonable accommodation to work during the day instead of at night. Id. Plaintiff was given a day job as a custodian in a different location. Id. Plaintiff states that she was not wanted at the new location, and that her supervisor, Chuck Martin, was “combative and hard to work with.” Id. ¶¶ 2-4. Plaintiff began to experience symptoms of kidney disease. Id. ¶ 5. She alleges that Martin would belittle her for taking time off of work because of her health. Id. Plaintiff alleges she nearly fainted on the job due to high blood pressure, and when Martin heard this he yelled “I'm sick of her ain't nothing wrong with her she's always calling out sick I'm sick of it and I'm sick of her, ” which scared plaintiff and made her feel “horrible.” Id. ¶ 7. In July of 2017, plaintiff alleges that Martin took the handle off of her vacuum while she was in the bathroom, and then later accused her of abandoning her vacuum for two hours. Id. ¶ 9. Plaintiff states that Martin's behavior was giving her “panic and anxiety attacks every day.” Id. Because of Martin's conduct and after learning that she was in kidney failure, plaintiff returned to therapy in November or December of 2017.^[2] Id. ¶¶ 10, 11. In January of 2018, plaintiff's therapist told her that her “mental illness of anxiety depression and bipolar disorder was exacerbated by the stress of [her] renal disease and stress at work.” Id. ¶ 11. Plaintiff did not return to work after November 2017. Plaintiff's Memorandum in Opposition (hereinafter “Opp'n”), Point IV, ECF No. 17-9.

On December 12, 2017, plaintiff received a letter from defendant requesting the reason for her absence and requesting her to attend a pre-disciplinary interview (“PDI”). Compl. ¶ 12. Plaintiff called Martin that same day and told him that she could not participate in the PDI because she was ill and her anxiety and depression had “gotten the best of [her].” Id. Plaintiff began seeing a specialist at the Advanced Center for Psychotherapy in January 2018, and in February 2018 the psychotherapy center sent USPS a letter explaining that plaintiff was a patient. Id. ¶ 14. On February 16, 2018, USPS's occupational nurse, Margaret Mais, told plaintiff that the letter was not sufficient to explain her absence, and on February 26, 2018, plaintiff's psychotherapist sent a more detailed letter. Id.

Sometime between February 2018 and April 2018 plaintiff was diagnosed with end stage renal disease. Id. ¶ 15. She was “bedridden” and “going back and forth to the emergency room.” Id. On April 24, 2018, plaintiff contacted Mais about her diagnosis and on May 24, 2018, Martin contacted plaintiff and instructed her to return to work or provide acceptable documentation to explain her absence. Id. ¶¶ 15-16. On June 15, 2018 plaintiff was instructed to attend another PDI. Id. ¶ 17. Plaintiff was unable to contact USPS between May 24 and June 15 because her health had taken a “turn for the worst, [sic]” but she spoke to Martin on June 21, 2018. Id. ¶ 18. Martin said that plaintiff needed to provide a doctor's note, and plaintiff informed him that she had an appointment with her doctor upcoming in July and could obtain a doctor's note then. Id. ¶¶ 18-19. Instead, plaintiff received a letter from Martin on July 2, 2018 informing her that she was being charged with continuous absence without leave and abandoning her position, and that she would be terminated from her position effective August 8, 2018. Id. ¶ 20.

Plaintiff was hospitalized from July 11, 2018 to August 1, 2018 and on August 22, 2018 plaintiff went into kidney failure and was rushed to the hospital to receive a hemodialysis catheter and to start emergency dialysis. Opp'n, Point IV; Compl. ¶ 23. Plaintiff was again admitted to the hospital on September 7, 2018 with viral meningitis. Id. ¶ 24. Plaintiff received dialysis treatment three days a week until she was able to receive a kidney donation from her mother on January 22, 2019. Id. ¶ 39. Plaintiff states that after the kidney transplant, she did not have the strength to go through with the formal EEO process until May 16, 2019. Id.

Plaintiff's doctors told her she would be physically able to return to work on December 1, 2019. However, on June 11, 2019, USPS management and plaintiff's union settled plaintiff's grievance and required her to return to work on September 3, 2019. Plaintiff did not return to work because of her health. Id. ¶¶ 31-32. Plaintiff's complaint states that a male colleague took six months of paid illness leave with no negative consequences and alleges that defendant failed to give her a similar accommodation because of her race and gender. Id. ¶¶ 26, 28.

Plaintiff's EEO charge alleged that defendant discriminated against her on July 2, 2018 and June 11, 2019 based on her race (African-American), sex (female), and disability (“kidney failure/bi-polar”). EEO Complaint of Discrimination in the Postal Service (“EEO Charge”), ECF No. 17-5. The EEOC denied plaintiff's claim regarding receipt of her termination letter on June 2, 2018 on the basis that it was not timely filed. Dismissal of Formal EEO Complaint (“EEOC Decision”), ECF No. 17-6.^[3] The EEOC also ruled that plaintiff's claim relating to the June 11, 2019 settlement was a collateral attack on the settlement reached between plaintiff's union and USPS management, and the EEOC process was not the proper forum for such a claim. Id.

PROCEDURAL HISTORY

Plaintiff requested pre-complaint processing with the EEOC on May 16, 2019, and on August 27, 2019 she filed a formal complaint of discrimination with the agency. EEOC Decision, ECF No. 17-6. Plaintiff received the EEOC's decision dismissing her claims on September 24, 2019. Id. Plaintiff timely filed this action on December 19, 2019. ECF No. 1. Defendant now moves to dismiss the complaint for lack of subject matter jurisdiction and for failure to state a claim. ECF No. 17.

LEGAL STANDARD

I. Dismissal Under 12(b)(1) and 12(b)(6)

The standards of review for a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction and for a motion to dismiss under Rule 12(b)(6) for failure to state a claim are substantively identical. Moore v. PaineWebber Inc., 189 F.3d 165, 169 n.3 (2d Cir. 1999). On a motion to dismiss under 12(b)(1), however, the party invoking the court's jurisdiction bears the burden of proof to show that subject matter jurisdiction exists, while the movant bears the burden of proof on a motion to dismiss under Rule 12(b)(6). Philadelphia Indemnity Insurance Company v. Indian Harbor Insurance Company, 434 F.Supp.3d 4, 9 (E.D.N.Y. 2020) (citations omitted). A court reviewing a motion to dismiss must accept all factual allegations in the complaint as true and draw all reasonable inferences in the non-movant's favor. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).

To survive a motion to dismiss, plaintiff must do more than allege facts that are “merely consistent with a defendant's liability, ” id., or “speculative, ” Twombly, 550 U.S. at 555; they must allege facts that “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S at 678 (quoting Twombly, 550 U.S. at 556). If a plaintiff does not “nudge[] [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Twombly, 550 U.S. at 570. The Court has the “obligation to construe pro se complaints liberally, even as [it] examine[s] such complaints for factual allegations sufficient to meet the plausibility requirement.” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (citation omitted). “It is well-established that the submissions of a pro se litigant must be construed liberally and interpreted ‘to raise the strongest arguments that they suggest.'” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (citations omitted); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“A document filed pro se is to be liberally construed . . . and a pro se...