Sharikov v. Philips Med. Sys. MR

659 F.Supp.3d 264

Roman SHARIKOV, Plaintiff, v. PHILIPS MEDICAL SYSTEMS MR, INC., Defendant.

1:22-cv-00326 (BKS/DJS)

United States District Court, N.D. New York

Signed March 7, 2023

Plaintiff Pro Se: Roman Sharikov, Waterford, NY 12188.

For Defendant: Robert C. Petrulis, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 127 Public Square - Suite 4130, Cleveland, OH 44114, Jamie Haar, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 599 Lexington Avenue, New York, NY 10022.

MEMORANDUM-DECISION AND ORDER

Brenda K. Sannes, Chief United States District Judge:

I. INTRODUCTION

Plaintiff pro se Roman Sharikov brings this action against Defendant Philips Medical Systems MR, Inc. alleging discrimination and retaliation claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213 in connection with Defendant's application of its COVID-19 policy. (Dkt. Nos. 1, 24). Plaintiff also alleges state law wrongful termination and breach of contract claims. (Dkt. No. 1). Presently before the Court is Defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (Dkt. No. 13-1). Plaintiff cross-moves to strike Defendant's motion to dismiss, or certain statements made therein, and to amend the Complaint. (Dkt. Nos. 21, 24). Defendant opposes those motions. (Dkt. Nos. 22, 25). For the following reasons, the Court denies Plaintiff's cross-motion to strike, denies Plaintiff's cross-motion to amend as futile, and grants Defendant's motion to dismiss.

II. CROSS-MOTION TO AMEND THE COMPLAINT

With his cross-motion to amend, Plaintiff has submitted a proposed Amended Complaint raising only claims under the ADA. (Dkt. No. 24). Defendant argues that the motion should be denied because Plaintiff failed to submit a redline/strikeout version or otherwise identify the amendments, as required by Local Rule 15.1(a). (Dkt. No. 25). Defendant further argues that the amendment is futile and cannot save Plaintiff's claims from dismissal. (Id.).

In general, leave to amend should be freely given "when justice so requires." Fed. R. Civ. P. 15(a)(2). "District courts in this Circuit have repeatedly explained that, when faced with an amended complaint, they may either deny a pending motion to dismiss as moot or consider the merits of the motion, analyzing the facts as alleged in the amended pleading." Pettaway v. Nat'l Recovery Sols., LLC, 955 F.3d 299, 303 (2d Cir. 2020) (citing Conforti v. Sunbelt Rentals, Inc., 201 F. Supp. 3d 278, 291 (E.D.N.Y. 2016)).

Since Defendant has had a full opportunity to respond to the proposed amendment, the primary ADA claims remain the same, and Plaintiff is proceeding pro se, the Court considers the merits of the motions to dismiss in light of the proposed Amended Complaint.¹ If the claims in the proposed Amended Complaint cannot survive the motion to dismiss, then Plaintiff's cross-motion to amend will be denied as futile. See Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002) ("An amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6)." (citation omitted)), abrogated on other grounds by Knick v. Twp. Of Scott, Pa., — U.S. —, 139 S. Ct. 2162, 204 L.Ed.2d 558 (2019).

III. FACTS²

On September 5, 2016, Plaintiff began working for Defendant as an MR Global Support Specialist in Latham, New York, providing technical and administrative support to MRI magnet experts. (Dkt. No. 24, at 4, 7; Dkt. No. 24-1, ¶ 9). From "May 8, 2020 through November 8, 2021, the plaintiff and his colleagues were made aware of a newly adopted '[COVID]-19 policy' which told all employees to wear masks and gloves at work as well as when commuting to work, to answer daily medical inquiries in a questionnaire, to remain physically isolated from other workers, to perform weekly self-examinations or to get '[COVID]-19 vaccinations'[,] . . . to enter [their] 'vaccine status' on an online portal as a condition of employment, to limit [their] access to certain office areas based upon 'vaccine status,' and to accept segregation based upon 'vaccine status' " (the "COVID-19 Policy"). (Dkt. No. 24, at 7). On June 23, July 13, and August 18, 2020, Plaintiff received "repetitive emails" from the executive assistant to the facility general manager "informing [Plaintiff] that [he] has to wear a mask in order to be allowed to enter the work site" and "to use a temperature scanner that displays [his] temperature to anyone looking at the screen." (Dkt. No. 24-1, ¶ 11; Dkt. No. 24-2, at 5-14).

Plaintiff alleges that on August 14, 2020, he received an email from Defendant telling him to "wear a mask while working and even when [he is] not working, such as during travel to public venues." (Dkt. No. 24-1, ¶ 12; Dkt. No. 24-2, at 15-16). The email cited by Plaintiff is a "Philips North America COVID-19 Weekly Update" for employees regarding the mask policy "while performing work on behalf of [Defendant]"; it states that employees who are required to wear a mask must wear it "for the entire duration of work performed, including in public venues like restaurants or gas stations," with certain exceptions. (Dkt. No. 24-2, at 15-16).

Throughout March and April 2021, the "Risk Management team posted . . . signs throughout the office" regarding social distancing in the office, using gloves and masks, and the use of the elevator and stairs. (Dkt. No. 24-1, ¶ 14; Dkt. No. 24-2, at 19). On March 25, 2021, Plaintiff received an email from Vitor Rocha, Chief Market Leader, directing Plaintiff to "submit a daily medical screening questionnaire," and answer whether he has had any contact with infectious people, in addition to the ongoing "temperature checks, masking and staying isolated [ ] from others in the office place." (Dkt. No. 24-1, ¶ 13). The email cited by Plaintiff, directed to "U.S. employees," describes the policies Defendant has taken, including "screening protocols for all entry points" "to ensure we can safely open our doors to more employees." (Dkt. No. 24-2, at 17-18). On June 4, 2021, Christopher Hoag, Senior Service Manager, sent an email to Plaintiff and five others with the subject line "Covid Update - Return to Office." (Id. at 20). In it, Hoag explained that around "the beginning of July," Defendant expected to "go from Medium to low risk," at which point Defendant's "Mask policy" would allow "masks [to] be removed once you sit at your desk but if anyone visits your desk then you are required to be masked." (Id.). Plaintiff viewed this email as a "personal[ ] request[ ]" that Plaintiff "wear a mask whenever someone comes to [his] desk to talk with [him]." (Dkt. No. 24-1, ¶ 15).

On August 16, 2021, Plaintiff received an email employee update with the subject line "Safe@Work Update: Return to Medium Risk in the U.S." (Dkt. No. 24-2, at 21). This email noted that workspace reservations via "the Planon tool remain a requirement for entry to the office daily," and provided a "protocol for reporting COVID cases." (Id. at 21-23). Plaintiff asserts that this email from Defendant "coerc[ed] [him] to enter [his] personal medical data on the 'Planon' app," and enabled Defendant to "mak[e] a record of the disability they regard [Plaintiff] has having." (Dkt. No. 24-1, ¶ 16). Defendant did not allow Plaintiff "to claim [his] right to informed consent or to refuse any of these measures." (Id.).

On August 17, 2021, Defendant's "Risk management team posted more harassing signs throughout the office." (Id. ¶ 17). The signs indicated that "[f]ully vaccinated employees" were permitted to remove their masks when "[a]lone in closed door room" or "sitting at desk/workspace" but that "[u]nvaccinated employees could not." (Dkt. No. 24-2, at 24). Plaintiff asserts that because employees were "segregated . . . based on their status of complying with certain medical procedures . . . everyone [would] know who is 'vaccinated' by the access they get." (Dkt. No. 24-1, ¶ 17). Based on this sign, Plaintiff concluded that "the company is keeping records" of vaccination. (Id.).

The next day, Tom McGrew, an Environment Health and Safety Engineer, "came up to [Plaintiff] in the hallway, and demanded that [Plaintiff] cover [his] face with a mask," and Plaintiff told him he was not sick. (Id. ¶ 18).

On August 25, 2021, Plaintiff received an email with the subject line "Safe@Work Update: Customer facing requirements." (Dkt. No. 24-1, ¶ 19; Dkt. No. 24-2, at 25). The email contained a reminder "for U.S. employees" "that customer-facing employees must meet our customers' requirements for medical testing and vaccinations, including COVID-19." (Dkt. No. 24-2, at 25). Plaintiff viewed this email as indicating that "customers are demanding that [he] get[s] injections," which is "why [Defendant is] coercing [Plaintiff] to get injected." (Dkt. No. 24-1, ¶ 19; Dkt. No. 24-2, at 25-26). Plaintiff could "only conclude that [customers] believe [he] is an infectious threat because [his] employer is telling all customers that [he is] contagious." (Dkt. No. 24-1, ¶ 19).

On September 10, 2021, Plaintiff received another "Safe@Work Update" email from Defendant. (Dkt. No. 24-1, ¶ 20; Dkt. No. 24-2, at 27-28). The email indicated that the U.S. Department of Labor's Occupational Safety and Health Administration was "developing a rule" that was "expected to apply to Philips and [its] U.S.-based employees" that "will require" a "fully vaccinated" workforce "or require workers who remain unvaccinated to produce a negative test on at least a weekly basis before coming into work." (Dkt. No. 24-2, at 27). Plaintiff construed this informing him "that as a condition of [his] employment [he] will now be required to give tissue[ ] samples on a regular basis or get experimental injections because of both [Defendant's] policy and the newly announced 'customer[']s policy.' " (Dkt. No. 24-1, ¶ 20; Dkt. No. 24-2, at 27-28). Six days later, Plaintiff received an email from...