Opinion
22-CV-0073 (MMG) (KHP)
04-24-2024
NOEL ARROYO, Plaintiff, v. KENT SECURITY SERVICES, Defendant.
REPORT AND RECCOMENDATION
KATHARINE H. PARKER UNITED STATES MAGISTRATE JUDGE
To: THE HONORABLE MARGARET M. GARNETT, United States District Judge
From: KATHARINE H. PARKER, United States Magistrate Judge.
Before the Court for a Report and Recommendation is pro se Plaintiff's motion for a default judgment against Defendant Kent Security Services (“Kent Security”). For the reasons set forth below, I respectfully recommend that Plaintiff's motion be denied in its entirety, and further recommend that Plaintiff be ordered to show cause in writing in twenty-one (21) days why his Complaint should not be dismissed for failure to state a claim upon which relief can be granted.
BACKGROUND
On January 4, 2022, Plaintiff Noel Arroyo (“Arroyo”) filed a complaint against Kent Security alleging violations of the Americans with Disabilities Act (“ADA”) and the New York City Human Rights Law (“NYCHRL”). Arroyo alleges that on November 11, 2021, he was interviewed for a position at Kent Security. (ECF No. 1 at 8.) He was offered a position as a concierge at a building located on the upper west side of Manhattan. (Id.) Arroyo was scheduled to begin his training as a concierge on November 15, 2021. (Id.) Arroyo alleges that at no point was he advised of a mask requirement or policy. On Arroyo's first day as an employee, he was advised by the building's lead concierge that he would have to wear a mask while on duty. (Id at 9.) Arroyo then told the lead concierge that he had a disability and “was mask exempt.” (Id.) He was then told to leave the building and discuss the issue with a Kent Security representative at their offices. (Id.)
Although not stated by Arroyo, the Court assumes the mask requirement pertained to the building's Covid-19 protocols.
Arroyo alleges that when back at the Kent Security offices, he “requested a reasonable accommodation” and that he showed his new employer a letter from his therapist indicating his disability and self “report[ed]” inability to wear a mask. (Id.) Arroyo states that Kent Security failed to accommodate him, and that his employment was terminated as a result. On December 25, 2021, Plaintiff filed a claim with the Equal Employment Opportunity Commission (“EEOC”). (Id. at 11.) However, at a status conference held before the undersigned on November 14, 2022, Arroyo stated that he never received a notice of a right to sue, and none appears in any of his submissions. Arroyo also indicated on his form complaint that he did not receive a notice of right to sue. (Id. at 6.)
Defendant was served by the U.S. Marshals on August 30, 2022. (ECF No. 23.) However, Defendant has at no point appeared or responded in this action. The Clerk's Certificate of Default was entered on April 10, 2023. (ECF No. 37.) The Court granted Defendant an extension of time to oppose or object to the entry of a default judgment until February 29, 2024, but no response was received. (See ECF No. 49.) Plaintiff then filed the present motion for a default judgment. (ECF No. 50.)
LEGAL STANDARD
Federal Rule of Civil Procedure (“Rule”) 55 governs judgments against a party that has failed to plead or otherwise defend itself in an action. Gesualdi v. Reid, 198 F.Supp.3d 211, 217 (E.D.N.Y. 2016). Rule 55 requires the Clerk of the Court, upon notification from the moving party, to note the default of the party failing to defend. Priestley v. Headminder, Inc., 647 F.3d 497, 505 (2d Cir. 2011) (citing Fed.R.Civ.P. 55(a)). Once the Clerk issues a certificate of default, the moving party may apply for entry of default judgment, pursuant to Rule 55(b). Id. A default constitutes an admission of all well-pleaded factual allegations in the complaint, and the allegations as they pertain to liability are deemed true. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). However, Plaintiff is not entitled to default as a matter of right. Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor Mgmt. Co-op., Pension & Welfare Funds v. Flooring Experts, Inc., No. 12-cv-6317 (ADS) (AKT), 2013 WL 4042357, at *2 (E.D.N.Y. Aug. 8, 2013), adopted by, 2013 WL 4761151 (E.D.N.Y. Sept. 3, 2013). Plaintiff bears the burden to demonstrate that their uncontroverted allegations, without more, establish the defendant's liability on each asserted cause of action. Id.
When determining whether to grant a default judgment, the Court applies the same factors that apply to a motion to set aside entry of default. Pecarsky v. Galaxiworld.com, Ltd., 249 F.3d 167, 170-71 (2d Cir. 2001). The three factors are: “(1) whether the defendant's default was willful; (2) whether defendant has a meritorious defense to plaintiff's claims; and (3) the level of prejudice the non-defaulting party would suffer as a result of the denial of the motion for default judgment.” Indymac Bank, F.S.B. v. National Settlement Agency, Inc., 2007 WL 4468652, at *1 (S.D.N.Y. Dec. 20, 2007) (internal citation omitted); see also Guggenheim Capital, LLC v. Birnbaum, 722 F.3d 444, 455 (2d Cir. 2013) (applying these factors in review of lower court's grant of a default judgment).
DISCUSSION
The first factor, the Defendant's willfulness in default, weighs in favor of the Plaintiff. Defendant was served with the complaint by the U.S. Marshals on August 30, 2022. (ECF No. 23.) Defendant was given numerous notices and an extension of time to appear but has never made an appearance in this action. (See ECF No. 53, 49.) The Defendant's failure to make an appearance and to respond to either Plaintiff's complaint or motion for default judgment are indicative of willful conduct. Trustees of the New York City Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity Fund, Apprenticeship, Journeyman Retraining, Educ. & Indus. Fund v. Inniss Constr., Inc., 2021 WL 2556130, at *2 (S.D.N.Y. May 13, 2021), report and recommendation adopted sub nom. Trustees of New York City Dist. Council of Carpenters Pension Fund v. Inniss Constr., Inc., 2021 WL 2555840 (S.D.N.Y. June 22, 2021). Therefore, Kent Security's default was willful.
However, the second factor, whether the Defendant would have a meritorious defense, weighs overwhelmingly against the entry of a default judgment. First, Plaintiff has not demonstrated that he exhausted his administrative remedies with respect to his ADA claims before bringing the instant suit. Plaintiff has not attached an EEOC right-to-sue letter to any of his materials, and indicated at the November 11, 2022, conference that he had not received a right to sue letter from the EEOC. Therefore, Plaintiff's ADA claims are defective because “the right-to-sue letter is a precondition to bringing [ADA] claims in federal court.” Earl v. Good Samaritan Hosp. of Suffern NY, 625 F.Supp.3d 292, 301-02 (S.D.N.Y. 2022), aff'd, No. 22-2505-CV, 2023 WL 8708417 (2d Cir. Dec. 18, 2023).
The Court notes that if Plaintiff has in fact received a right to sue letter during the pendency of this litigation, or if Plaintiff can demonstrate that he made a “diligent effort” to obtain the letter, Plaintiff can cure this defect with a new filing. Caputo v. Copiague Union Free Sch. Dist., 218 F.Supp.3d 186, 192 (E.D.N.Y. 2016).
Even if Plaintiff had received a right-to-sue letter, the allegations in the complaint are insufficient to establish a prima facie case of disability discrimination or failure to make reasonable accommodations. To establish a prima facie case of discrimination under the ADA, the plaintiff must show by a preponderance of the evidence that: (1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered adverse employment action because of his disability. McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013). To make a prima facie claim for failure to accommodate, a Plaintiff must show (1) he is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of his disability; (3) with reasonable accommodation, the employee could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations. Berger v. New York City Police Dep't, 304 F.Supp.3d 360, 369 (S.D.N.Y. 2018).
Here, Plaintiff has not sufficiently pleaded that he is a person with a disability as defined in the ADA. Courts apply a three-part test to determine whether a plaintiff has an actual disability under the ADA. Cody v. Cty. of Nassau, 577 F.Supp.2d 623, 637 (E.D.N.Y. 2008) (quoting Sussle v. Sirina Prot. Sys. Corp., 269 F.Supp.2d 285, 296 (S.D.N.Y. 2003)), aff'd, 345 Fed.Appx. 717 (2d Cir. 2009). First, a plaintiff must demonstrate that he suffers from a physical or mental impairment. Second, a plaintiff must identify an activity claimed to be impaired and establish that it constitutes a major life activity. Third, a plaintiff must demonstrate that his impairment substantially limits the major life activity identified in step two. Id. at 638; see also Norman v. NYU Langone Health Sys., 492 F.Supp.3d 154, 163 (S.D.N.Y. 2020). If a plaintiff fails to satisfy any of these prongs, his discrimination claim must be dismissed. Felix v. N.Y.C. Transit Auth., 154 F.Supp.2d 640, 653 (S.D.N.Y. 2001).
For the first factor, Plaintiff offers some evidence that he suffers from a mental impairment. Plaintiff provided a letter from Caridel Hernandez, a “therapist, LMSW” who indicated Arroyo is “diagnosed with generalized anxiety disorder with panic attacks and depression.” (ECF No. 46 at 5.) Ms. Hernandez also reported that “[Arroyo] continues to exhibit symptoms that interfere with his daily life and reports wearing a mask during the pandemic as a trigger to his anxiety.” Id. This letter, which constitutes Plaintiff's only elucidation of his impairment, is deficient on several grounds. To start, it is not clear from the letter that Ms. Hernandez was qualified to make a medical diagnoses as a Licensed Master Social Worker (“LMSW”) at the time she wrote the letter. Compare NYS Edu. L. Art. 154 §7701(1) with NYS Edu. L. Art. 154 §7701(2) (noting that while a LCSW may made medical diagnoses, an LMSW may not without supervision). But, assuming the diagnoses were made by a person authorized to do so, neither generalized anxiety disorder nor depression are generally considered disabilities under the ADA. Zuckerman v. GW Acquisition LLC, 2021 WL 4267815, at *11 (S.D.N.Y. Sept. 20, 2021) (holding, on a motion to dismiss, that “generalized anxiety disorder, is not on the list of EEOC conditions likely to qualify as a disability by its very nature” and therefore “allegations that Plaintiff has been diagnosed with the condition, without more, are insufficient to plead that Plaintiff suffered from an ADA-qualifying disability”); Bordeaux v. Halstead Prop. Dev. Mktg. LLC, No. 20-CV-1347 (LJL), 2022 WL 484992, at *8-9 (S.D.N.Y. Feb. 16, 2022)(“that an individual is ‘depressed' or was assessed as having a depressed mood, without more, does not necessarily lead to the conclusion that the individual suffers from major depressive disorder,” which would be considered a disability under the ADA). No information is provided as to when and how frequently Plaintiff suffers panic attacks.
Further, Plaintiff's therapist's cursory explanation of his symptoms as “interfere[ing] with his daily life” are insufficient to satisfy steps two or three of the inquiry. See Robles v. Medisys Health Network, Inc., 2020 WL 3403191, at *6 (E.D.N.Y. June 19, 2020) (on a motion to dismiss, finding “a medical diagnosis, without more, ‘establishes only that a plaintiff suffered an impairment,' and ‘not that his ability ... was substantially limited by that impairment.”). To be substantially limited in performing a major life activity, an individual must plead the impairment prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives. Cody v. Cnty. of Nassau, 577 F.Supp.2d 623, 639 (E.D.N.Y. 2008), aff'd, 345 Fed.Appx. 717 (2d Cir. 2009). Here, neither the Plaintiff nor his therapist identify a single activity of daily life that is at all impeded by the Plaintiff's impairment except, of course, Plaintiff's apparent (and self-reported) inability to wear a mask. And, notably, Plaintiff's alleged disability did not prevent him from working as a security guard generally; rather, he appears to assert that he was qualified to perform the job. Without evidence or details as to how Plaintiff's impairment “severely impacts his every day life,” Plaintiff cannot establish that he is disabled for the purposes of the ADA. Id. at 640-1 (determining Plaintiff's diagnosis of generalized anxiety disorder, which included details that Plaintiff could not perform particular job roles, was not evidence of an impairment substantially limiting activities of daily life). Because Plaintiff has not pled facts sufficient to demonstrate that he is disabled for the purposes of the ADA, he has not made out a prima facie case for either discrimination or failure to accommodate. Alvarez v. New York City Dep't of Educ., 2021 WL 1424851, at *6 (S.D.N.Y. Apr. 15, 2021)(dismissing ADA claim where Plaintiff failed to plead facts that demonstrated claimed impairment substantially limited a major life activity).
Defendants therefore have at least two complete and meritorious defenses to Plaintiff's federal claims, failure to state a federal claim and failure to exhaust administrative remedies. Thus, the second factor in the Court's analysis of whether to grant a default judgment, weighs heavily against an entry of default. Critically, where Plaintiff has not made out a prima facie case for his claims, the Court cannot enter a default judgment. Joseph v. HDMJ Rest., Inc., 970 F.Supp.2d 131, 148 (E.D.N.Y. 2013)(denying default judgment where Plaintiff had not demonstrated they were disabled under the ADA). Therefore, I do not reach the third default judgment factor of whether Plaintiff would be prejudiced without entry of a default judgment.
As for Plaintiff's state law claims, the Court may decline to exercise supplemental jurisdiction where it must dismiss Plaintiff's federal claims. See 28 U.S.C. § 1367(c)(3) (“The district courts may decline to exercise supplemental jurisdiction over a claim ... if ... the district court has dismissed all claims over which it has original jurisdiction ...”); see also Carnegie-Mellon University v. Cohill, 484 U.S. 343, 350 n.7, (1988) (“in the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine-judicial economy, convenience, fairness, and comity-will point toward declining to exercise jurisdiction over the remaining state-law claims”). Since Plaintiff has not pled a prima facie case for his federal claims, I respectfully recommend the Court decline to exercise supplemental jurisdiction over the NYCHRL claim. See Perez v. New York Presbyterian/Weill Cornell Med. Ctr., 2024 WL 1514216, at *10 (S.D.N.Y. Apr. 8, 2024) (declining to exercise jurisdiction over NYSHRL and NYCHRL claims where ADA claims were dismissed).
CONCLUSION
Given the aforementioned deficiencies with Plaintiff's claims as pleaded, I respectfully recommend that the Court deny Plaintiff's request for a default judgment, and further recommend that Plaintiff be ordered to show cause in writing in twenty-one (21) days why his Complaint should not be dismissed for failure to state a claim upon which relief can be granted.
NOTICE
Plaintiff shall have seventeen days from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed.R.Civ.P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). A party may respond to another party's objections after being served with a copy. Fed.R.Civ.P. 72(b)(2).
Defendant shall have fourteen days to serve and file any response. Fed. R. Civ. P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Margaret M. Garnett at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Garnett. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985).