Tsekhanskaya v. City of N.Y.

Larisa Tsekhanskaya, Plaintiff, v. The City of New York, The Department of Healthand Mental Hygiene of the City of New York, Defendants.

18-CV-7273 (KAM)(LB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

September 29, 2020

MEMORANDUM & ORDER

MATSUMOTO, United States District Judge:

Plaintiff Larisa Tsekhanskaya ("plaintiff") commenced this action, pro se, against defendants, the Department of Health and Mental Hygiene of the City of New York ("DOHMH") and the City of New York (collectively, the "defendants") 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., the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621, et seq., 42 U.S.C. § 1981, the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601, et seq., the Rehabilitation Act of 1973 ("Rehab. Act"), 29 U.S.C. § 794, et seq., and the New York State Human Rights Law ("SHRL"), N.Y. Exec. L. § 290, et seq. Plaintiff alleges that she was the victim of employment discrimination on the basis of national origin, gender, age, religion, race and disability. Plaintiff also alleges retaliation and denial of leave under the FMLA. (Id.)

Presently before the court is defendants' motion to dismiss on the grounds that plaintiff's claims are time-barred, procedurally barred, prolix in violation of Federal Rule of Civil Procedure 8(a)(2), and fail to state a claim under Federal Rule of Civil Procedure 12(b)(6) ("Motion"). (See ECF No. 22, Defendants' Memorandum in Support of Motion; ECF No. 23, Defendants' Reply Memorandum in Further Support of Motion.) For the reasons set forth below, the court grants defendants' motion to dismiss the amended complaint in its entirety.

BACKGROUND

I. Factual Background

The background facts and allegations have been taken from the plaintiff's Amended Complaint.¹ On a motion to dismiss, the court "must accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor." LaFaro v. New York Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009) (quoting Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir.2001)). Plaintiff is a licensed master social worker ("LMSW"), formerly employed as a social worker by the New York City Department of Health andMental Hygiene ("DOHMH") from 2011 through January 2017. (Am. Compl. at 12, 18, 20, 26.) Plaintiff alleges that, in 2011, DOHMH retaliated against her by transferring her from Brooklyn to Queens "under protest." (Id. at 20.) Plaintiff does not specify the reason for defendants' alleged retaliation against plaintiff.

Plaintiff also notes that she filed a complaint "with EEOC, DOHMH EEOC, and union grievances" in 2012, and asserts that her complaints "resulted in retaliation, a hostile work environment, isolation, harassment, repeated false accusations, [being] singled out and being forced [to sit] for long meetings in windless offices[.]"² (Id.) Plaintiff alleges that, in June 2012, a "Dr. Velazquez" made unspecified "derogatory remarks" and exhibited "inappropriate behavior" toward her and three other individuals. (Id. at 29.) Further, in June 2012, plaintiff was mandated to undergo a psychiatric evaluation "or face termination." (Id.) Plaintiff apparently asserts that the psychiatric evaluation was foisted upon her "because of her discrimination complaints," as well as unspecified "false accusations, the bright colors of plaintiff's clothing . . . [and] her coworkers' belief that plaintiff fabricated a family death . . . in order to take vacation," among other things.(Id. at 29-30.) Following the 2012 psychiatric evaluation performed by a "city consultant," the consultant allegedly produced a written report that plaintiff was unfit to work as a supervisor of social work, to which plaintiff objected. (Id.)

After providing evaluations to plaintiff's supervisor, Tessler-Handler, from private physicians finding that plaintiff was mentally fit to work, plaintiff was permitted to return to work in August 2012. (Id. at 31.) Upon plaintiff's return to work, plaintiff heard rumors spread by Randi Krittman, a social worker, and Jessica Wolff, a Labor Relations attorney, that plaintiff had spent time in a psychiatric hospital, which she believes evinces "Defendants' animus toward plaintiff based on her perceived disability of mental illness." (Id.) In 2013, plaintiff was allegedly given an unsatisfactory performance evaluation for taking "too much of approved and documented sick leave," and was transferred to the Queens office. (Id. at 31-32.) In December 2013, plaintiff filed a request for reasonable accommodation for a "1-2 hour flex band," which was denied. (Id. at 32.) Plaintiff was also allegedly considered and not selected for a promotion in 2013 and 2014. (Id.) Plaintiff also alleges that it was "difficult" to take sick leave for medical appointments and treatments for breast cancer. (Id.)

Though the Amended Complaint includes contradictory allegations, as best as the court can discern, in October 2016,plaintiff was again found psychologically unfit to return to work during a psychological evaluation performed by Dr. David Salvage.³ (Id. at 22-23.) That month, plaintiff was placed on "involuntary medical leave" but continued working under the supervision of a supervisor named "Hulbrock." (Id. at 24.)

Plaintiff accuses coworkers including Cheryl Charles, Randi Krittman, Joanne Mclean-Ernoni, Daniel Garza, Roland Hill, Nancy Hulbrok and others of giving her excessive work, subjecting her to verbal abuse, spreading rumors, bullying her, making passive aggressive comments, and denying her requests for work accommodations. (Id. at 30-45.) Plaintiff asserts that these actions were either retaliation for the complaints she had filed or because of her religion, ethnicity and gender.⁴ (Id. at 30-45.)

The complaint states that from December 26, 2013 to December 26, 2014, plaintiff was approved for FMLA leave. (Am. Compl. at 36-37.) Plaintiff alleges that her subsequent requests for renewal of leave were initially denied and later approved. (Id. at 37.) It is unclear what the alleged basesfor the FMLA requests were, although the complaint includes various ailments plaintiff suffered including, a knee injury, breast cancer and "WTC related" disability. (Id. at 4, 17, 22, 45.) Plaintiff made various requests for "flex time" to the DOHMH Equal Employment Opportunity office as well as a request for transfer, which were denied. (Id. at 37-38.)

Plaintiff alleges coworkers retaliated against her in connection with her requests for FMLA leave and accommodation. Plaintiff says that when she gave McLean-Ernoni a doctor's note for a "1-2 hour flex band" in January 2016, Ernoni began shouting at her and making aggressive gestures. (Id. at 44-45.) McLean-Ernoni eventually, "stopped and asked Tsekhanskaya why she was covering her face because McLean-Ernoni was not going to hurt Tsekhanskaya because she loves her job too much and was never arrested for violence before." (Id.) Plaintiff further asserts that the real reason the flex time request was not granted was because Ms. Hulbrock, who was herself a patient at Memorial Sloan Kettering Medical Center, did not believe plaintiff had a breast cancer diagnosis. (Id. at 50.) Plaintiff alleges that, in December 2016, Roland Hill yelled and pointed his finger in plaintiff's face in an aggressive manner, but plaintiff does not specify what prompted this alleged outburst. (Id. at 51.) After plaintiff threatened Mr. Hill that she would call 911, Mr. Hill left the confrontation. (Id.at 52.) Plaintiff also alleges that union and security officials refused to provide her with a video of the incident. (Id. at 49-50.)

II. Procedural History

Plaintiff's Prior Administrative Complaints

In July 2016, plaintiff filed a complaint with the Department of Labor ("DOL") regarding the DOHMH's refusal to grant her FMLA request. (Id. at 6, 13.) In September 2016, the DOL requested that plaintiff provide documentation and information relating to her FMLA complaint. (Id. at 14-15.) Plaintiff claims to have received a Notice of the Right to Sue letter from the DOL in August 2016, but did not attach it to her Amended Complaint. (Id. at 6.)

On December 27, 2017, almost one year after her retirement from DOHMH, plaintiff filed an administrative complaint with the New York State Division of Human Rights ("SDHR"), alleging that she was discriminated against in employment, on the basis of national origin and disability, and retaliated against. (Id. at 10; ECF No. 21, Declaration in Support; ECF No. 21-1, Ex. A, Complaint to Division of Human Rights).) In her SDHR complaint, plaintiff alleged that six coworkers made disparaging comments about her, including statements expressing hatred or dislike toward: Russians, Russian Jews, Hasidic Jews, Russian language speakers andaccusing plaintiff of being a Russian spy or member of the Russian mafia. (ECF No. 21-1 ¶¶ 15-33.) Plaintiff also alleged that various coworkers called her "chemo brain" following her cancer diagnosis, hit her with a bag, physically threatened her and retaliated against her by placing her on involuntary leave and bringing misconduct charges against her. (Id. at ¶¶ 24, 34-61.)

DOHMH responded to plaintiff's administrative complaint, by vehemently denying plaintiff's accusations of misconduct.⁵ (ECF No. 21-2, Ex. B, DOHMH Opposition to Complaint, at 2-6.) Regarding defendants' decision to place plaintiff on involuntary leave pursuant to Civil Service Law § 72, DOHMH stated that the department's actions were taken in response to plaintiff's "paranoia, cognitive disorganization, anxiety, and harassing argumentative behavior" which rendered her incapable of performing her work duties and caused significant disruption for the rest of the office. (ECF No. 21-2 at 25.) Examples of this purported behavior included filing dozens of...