Opinion
22-CV-6323 (LTS) (KHP)
07-15-2024
CHADD WOOD, Plaintiff, v. VIACOMCBS/PARAMOUNT, Defendants.
HONORABLE LAURA TAYLOR SWAIN, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON MOTION TO DISMISS
KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Chadd Wood, proceeding pro se, brings this action against his former employer, ViacomCBS/Paramount (“Viacom”). Construing the First Amended Complaint liberally, it arguably asserts claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Genetic Information Non-Discrimination Act (“GINA”), 42 U.S.C. 2000ff and Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. Wood also contends Viacom violated his constitutional right to freedom of choice in medical care, which he states is the right to refuse unwanted medical treatment and the right preserving the doctor-patient relationship.
While Wood references 42 U.S.C. § 1983 or 18 U.S.C. § 242 in his complaint, Wood states in his opposition brief that he is not making any claims under these statutes. Therefore, I do not address any arguments pertaining to these statutes. Also, Wood calls out Section 700(J) of Title VII specifically as if it were a separate claim. I construe Woods' claims under Title VII to include its reasonable accommodation of religion requirements and address this below when discussing the Title VII claims. Finally, the complaint references 18 U.S.C. § 1091, prohibits genocide and is clearly inapplicable to this case. No specific claims are made under this statute so I do not construe the complaint as stating a claim under this statute.
Presently before the Court for a Report and Recommendation is Viacom's Motion to dismiss the First Amended Complaint (ECF No. 36) and Plaintiff's Motion to Challenge the Constitutionality of the EEOC (ECF No. 47).
The Court utilizes allegations in the First Amended Complaint (“FAC”) (Dkt. No. 21) and Wood's EEOC Charge (Dkt. No. 38-1), as well as facts set forth in his opposition to the Motion to Dismiss (“Opp. Br.”) (Dkt. No. 48) to set forth the factual allegations.
At the start of the COVID-19 Pandemic, Viacom moved to remote work. Wood began remote work. After vaccines for COVID were available to the public, and in contemplation of return to in-person work, Viacom issued a policy requiring all employees to be vaccinated. Its policy allowed for employees to request exemption from receiving the vaccine as an accommodation for disability or religion. In or about September 2021, Wood requested a medical accommodation and exemption from the vaccine mandate and expressed a desire to continue working from home rather than come into the office. (Opp. Br. ¶ 1) He sent “medical” documents supporting his request on November 2, 2021 and again on January 26, 2022. (Opp. Br. ¶ 2) His documentation consisted of an affidavit from “Dr. Amaru XI-Ali”, and a “Tribal Medical Contraindication” form from the “Xi-Amaru Tribal Government” (“Tribe”).After first receiving the medical documentation, Viacom wrote to Wood explaining the documents were not sufficient to support his request because they referred only to the possibility of an allergic reaction to the vaccine but did not state that Wood himself had a medical condition that rendered him medically unable to receive a vaccine. (Opp. Br. ¶¶ 8-22) Wood then spoke and emailed with Human Resources to follow up on his request and the denial. (Opp. Br. ¶¶ 23-24)
The Court notes that there is no record of the “Xi-Amaru Tribal Government” in the U.S. Department of Interior's Tribal Leader's Directory: htps://www.bia.gov/service/tribal-leaders-directory. The Court may take judicial notice of this directory, although recognition of the relevant tribe has no impact on the analysis below.
During the course of his communications with HR, Wood requested that he be exempt from the vaccine mandate and allowed to work from home as a religious accommodation. (Opp. Br. ¶2-4) On December 9, 2021, Viacom asked for more information concerning his religious accommodation request because the information he submited indicated that his request for an accommodation was more medical and political rather than based on a religious belief. (Opp. Br. ¶26-32) Plaintiff then explained that his tribal beliefs included not consuming anything unnatural, processed, or containing chemicals, including vaccines. He also stated that his religion was Indigenous Islam. (Opp. Br. ¶¶ 34-36) After receiving Wood's further explanation of his religious beliefs, Viacom notified him that he had not established that his beliefs were sincerely held and denied his request for accommodation. (Opp. Br. ¶¶ 38-41) Wood again followed up saying that his beliefs were sincerely held and asking for clarification of the explanation denying his request. (Opp. Br. ¶ 44) Ultimately, Wood's appeals were denied and his employment terminated on or about March 25, 2022 because he refused to get a vaccine as required for in-person work.
On or about September 27, 2022, Wood filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (“EEOC”). (Dkt. No. 38-1) In the charge, Wood claimed that he was discriminated against because of genetic information in violation of GINA. Id. He did not check any other box as a basis for the alleged discrimination. Id. In his narrative, Wood claimed that he provided required medical proof of his medical “contraindication” for the vaccine and that Viacom did not engage in an appropriate interactive process concerning his request to work from home in lieu of geffing the vaccine. Id. On September 28, 2022, the EEOC issued Wood a notice of right to sue (Dkt. 38-2), and he timely commenced this action.
In his complaint, he contends Viacom discriminated against him because he chose not to modify his genetic structure by not taking the vaccine, which he characterizes as a violation of GINA. He also contends that Viacom improperly rejected his medical documentation of contraindications to the vaccine (specifically, an allergy to an unspecified component of the COVID-19 vaccine) without just cause and treated him differently from other unspecified employees who were allowed to work from home. He also claims that Viacom improperly denied him a religious accommodation. (Dkt. No. 21) Wood also complains that the vaccines were not all approved by the FDA and that Viacom misrepresented that the vaccines were approved. (Id.) Wood seeks to recover lost wages and additional money damages. (FAC ¶ 1)
LEGAL STANDARD FOR MOTION TO DISMISS
When considering a motion to dismiss under Rule 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Cruz v. Beto, 405 U.S. 319, 322 (1972); Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015) (citing Ofori-Tenkorang v.Am. Int'l Grp., Inc., 460 F.3d 296, 300 (2d Cir.2006)). To survive the motion, the court must determine whether the complaint contains “sufficient factual mater . . . to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While detailed factual allegations are not required, the complaint must contain more than mere “labels and conclusions or formulaic recitation of the elements of a cause of action.” Id. It must contain more than naked assertions devoid of “further factual enhancement.” Id. As the United States Supreme Court explained in Ashcroft v. Iqbal, the “plausibility standard” asks for “more than a sheer possibility that a defendant has acted unlawfully.” Id.
In Littlejohn v. City of New York, the United States Court of Appeals for the Second Circuit further elaborated on the “plausibility standard” in the context of claims for unlawful discrimination under Title VII. 795 F.3d at 310-11 . Littlejohn held that the facts asserted in the complaint must “give plausible support to a minimal inference of discriminatory motivation”- the inference needed to establish a prima facie case of discrimination under the burden-shifting paradigm applicable to Title VII cases under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. at 311. However, the court made clear that it is not necessary at the pleading stage for a plaintiff to provide additional facts that would support the plausibility of “the ultimate question of whether the adverse employment action was atributable to discrimination.” Id. Of course, some facts in a complaint may go to the plausibility of both a prima facie case of discrimination and the ultimate question of whether there was intentional discrimination. But for purposes of a motion to dismiss, this Court's analysis is focused only on whether the facts in the Complaint plausibly support a minimal inference of discriminatory motivation, i.e., the level needed as part of a plaintiff's prima facie case of discrimination.
The above standards also apply where a defendant seeks to dismiss a complaint filed by a pro se litigant. See Legeno v. Corcoran Grp., 308 Fed.Appx. 495, 496-97 (2d Cir. 2009) (vacating and remanding dismissal of plaintiff's age discrimination complaint where plaintiff alleged sufficient facts to create an inference of age discrimination). Additionally, courts must construe a pro se plaintiff's complaint liberally and interpret the complaint “to raise the strongest claims that it suggests.” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (citations, internal quotation marks, and alterations omited); see also Tracy v. Freshwater, 623 F.3d 90, 103 (2d Cir. 2010) (“The underlying justification for the solicitude ordinarily granted to pro se litigants is that it is necessary to prevent such parties, who generally lack legal training and experience, from inadvertently forfeiting important rights.”) Although courts are required to liberally construe a pro se plaintiff's claims, “[p]ro se status does not . . . excuse a plaintiff from compliance with the pleading standards of the Federal Rules of Civil Procedure.” Jenkins v. New York City Dep't of Educ., No. 10 CV 6159(BSJ) (THK), 2011 WL 5451711, at *3 (S.D.N.Y. Nov. 9, 2011), aff'd, 508 Fed.Appx. 66 (2d Cir. 2013). Thus, despite the liberal pleading standard afforded to pro se litigants, a “‘court cannot invent factual allegations that [the plaintiff] has not pled.'” Gaddy v. Waterfront Comm'n, No. 13 Civ. 3322(AT)(HBP), 2014 WL 4739890, at *2 (S.D.N.Y. Sept. 19, 2014) (alteration in original) (quoting Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010)) (dismissing pro se plaintiff's complaint with leave to amend).
When a motion to dismiss is granted, the usual practice is to dismiss the claims without prejudice and grant plaintiff leave to amend the complaint. Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d Cir.1999); see also Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave [to amend] when justice so requires.”). Leave to amend should be granted unless there is evidence of undue delay, bad faith, undue prejudice, or futility. See Foman v. Davis, 371 U.S. 178, 182 (1962).
Finally, in ruling on Defendants' motions to dismiss, the Court may consider not only the Complaint but also “the plaintiff[']s relevant filings with the EEOC and other documents related to plaintiff's claim, even if they are not atached to the complaint, so long as those filings are either incorporate[d] by reference or are integral to and solely relie[d] upon by the complaint.” Littlejohn, 795 F.3d at 305 n.3 (alteration in original) (citation and internal quotation marks omited); Scott v. YSB Services Inc., 2024 WL 1330043 (S.D.N.Y. mar. 28, 2024) (court considered EEOC charge in deciding motion to dismiss). Moreover, “[e]ven where a document is not incorporated by reference, the court may nevertheless consider it where the complaint ‘relies heavily upon its terms and effect,' which renders the document ‘integral' to the complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (citation omited); see also Holowecki v. Fed. Express Corp., 440F.3d 558, 565-66 (2d Cir. 2006) (“[W]hen a plaintiff chooses not to atach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint, the court may nevertheless take the document into consideration in deciding the defendant's motion to dismiss, without converting the proceeding to one for summary judgment” (alteration in original) (citation omited)).
DISCUSSION
1. Failure to Exhaust
To assert a claim under Title VII, the ADA and GINA in federal court, a plaintiff is “required to exhaust the administrative remedies provided by the statute.” Duplan v. City ofN.Y., 888 F.3d 612, 621 (2d Cir. 2018); accord Malloy v. Pompeo, No. 18 Civ. 4756, 2020 WL 5603793, at *10 (S.D.N.Y. Sept. 18, 2020). As part of this requirement, a plaintiff bringing claims under Title VII or the ADA or GINA “must file a charge of discrimination with the EEOC ‘within three hundred days after the alleged unlawful employment practice occurred,' 42 U.S.C. § 2000e-5(e)(1), and must then file an action in federal court within 90 days of receiving a right- to-sue leter from the agency, id. § 2000e-5(f)(1).” Duplan, 888 F.3d at 621-22; accord Brown v.Wetz, No. 18 Civ. 11178, 2021 WL 964922, at *5 (S.D.N.Y. Mar. 15, 2021). “[C]laims in a civil lawsuit must either have been expressly asserted in the employee's EEOC complaint or else be ‘reasonably related' to the allegations raised therein.” Henry v. McDonald, No. 15 Civ. 4030, 2021 WL 1309729, at *8 (S.D.N.Y. Mar. 31, 2021). Claims are “reasonably related” if they “arise during the pendency of an EEOC investigation or a timely filed federal case,” Duplan, 888 F.3d at 624, and fall “within the scope of the EEOC investigation,” Thomas v. Buffalo Club, No. 17 Civ. 1050, 2021 WL 716703, at * 2 (S.D.N.Y. Feb. 24, 2021).
The burden of pleading and proving failure to exhaust administrative remedies “lies with [the] defendants and operates as an affirmative defense.” Hardaway v. Hartford Pub. WorksDep't, 879 F.3d 486, 491 (2d Cir. 2018). Claims are not usually dismissed on this ground unless a failure to exhaust administrative remedies is apparent from the face of the complaint and documents integral thereto. See Sewell v. Bernardin, 795 F.3d 337, 339 (2d Cir. 2015); Barrett v.Forest Lab'ys, Inc., 39 F.Supp.3d 407, 456 (S.D.N.Y. 2014) (collecting cases).
Plaintiff does not plead that he exhausted his remedies under Title VII, GINA or the ADA. The Court, however, considers Plaintiff's charge in connection with this motion because it is integral to the complaint. Plaintiff checked off a box stating discrimination on the basis of genetic information and received a right to sue leter. (Dkt. 38-1; 38-2) He filed this case within 90 days after receiving the notice of right to sue. Thus, Wood's GINA claim is exhausted and properly before the Court. Additionally, the EEOC charge can be construed to include a claim of disability discrimination under the ADA because the narrative of the charge discusses medical documentation and a request for a medical accommodation. It is highly likely that an EEOC investigation would include an investigation of all facts alleged in the charge, including those concerning a medical accommodation, and thus, even if not expressly mentioned, a claim of disability discrimination is reasonably related to the claim of genetic information discrimination and should be deemed properly exhausted.
However, the EEOC charge says nothing about religious beliefs or religious discrimination under Title VII, and the box on the EEOC charge for such discrimination is not checked. (Dkt. 381.) Accordingly, Plaintiff failed to exhaust his claim for religious discrimination under Title VII. Although the burden of proving Title VII exhaustion lies with defendants, Hardaway v. Hartford Pub. Works Dep't, 879 F.3d 486, 491 (2d Cir. 2018), non-exhaustion in this instance is clear from the Complaint and EEOC charge incorporated therein and, thus, the Title VII claims should be dismissed for failure to exhaust. Holmes v. Fresh Direct, 2015 WL 4885216, at *4 (E.D.N.Y. Aug. 5, 2015) (explaining that courts can take judicial notice of “public records and reports of relevant administrative bodies” to determine whether a Title VII claim should be dismissed for lack of exhaustion).
2. Whether Plaintiff States a Claim Under GINA
GINA prohibits discrimination on the basis of “genetic information”, i.e., an individual's genetic tests, the genetic tests of their family members, or the manifestation of disease or disorder in family members of such individuals. See 42 U.S.C. §§ 2000ff(4), § 2000ff-1(a). During the COVID-19 Pandemic, the EEOC issued guidance stating explicitly that an employer vaccine mandate cannot be challenged as a violation of GINA. The Court does not rely on this guidance in this recommendation, however, because the statute itself plainly does not cover the claim as asserted by Plaintiff. This is consistent with holdings of other courts that have dismissed complaints of genetic information discrimination by employees who were terminated after refusing the COVID-19 vaccination. See Harden v. Honeywell Int'l, Inc., No. 1:23-CV-00176, 2023 WL 3310172, at *4 (N.D.Ga. May 8, 2023) (dismissing GINA claim); see also Anderson v. United Airlines, Inc., 577 F.Supp.3d 1324, 1332-33 (M.D. Fla. 2021) (denying preliminary injunction; GINA claim without merit).
https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws (last accessed July 10, 2024) (administration of COVID-19 vaccine does not implicate Title II of GINA).
Plaintiff does not point to any genetic tests of him or his family that were known to Viacom or any other factual basis to support a plausible inference that Viacom discriminated against Plaintiff based on his genetic information. And, his assertion that the COVID-19 vaccine would alter his genetic information is not the type of claim recognized under GINA because it does not concern employer action based on his genetic information - rather, it is best understood as a concern regarding the efficacy and safety of the vaccine. Medical concerns about a vaccine are more properly construed as claims under the ADA, which is discussed below. Finally, Wood's allegation that the COVID-19 vaccines alter a person's genes is incorrect and contrary to established scientific consensus. The U.S. Centers for Disease Control and Prevention has unequivocally stated that the COVID-19 vaccines do not alter an individual's genetic information. See htps://www.cdc.gov/coronavirus/2019-ncov/vaccines/facts.html (last visited July 10, 2024) (“FACT: COVID-19 vaccines do not change or interact with your DNA in any way....”).
Accordingly, the complaint fails to state a claim of discrimination under GINA. Plaintiff should not be granted leave to replead this claim because the premise for his genetic information discrimination claim is not recognized by the law.
Neither state nor city law are formulated in a way that covers the premise of Plaintiff's genetic information discrimination claim either. See, e.g., Bravo v. De Blasio, 75 Misc.3d 373, 377, 167 N.Y.S.3d 708, 711 (N.Y. Sup. Ct. 2022)(holding mayor's emergency executive order mandating vaccination to enter certain establishments unless vaccinated did not violate city or state law.).
3. Whether Plaintiff States a Claim of Disability Discrimination Under the ADA
a. Discrimination
To state a claim of disability discrimination under the ADA, a plaintiff must show, inter alia, that he “suffers from or is regarded as suffering from a disability within the meaning of the ADA,” he “was qualified to perform the essential functions of the job, with or without reasonable accommodation,” and “[he] suffered an adverse employment action because of [his] disability or perceived disability.” Romano v. A360 Media, LLC, No. 120 CV 08988, 2023 WL 348459, at *6 (S.D.N.Y. Jan. 20, 2023) (quotation and citation omited).
Under the ADA, a “disability” is defined, with respect to an individual, as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.....” See 42 U.S.C. § 12102(1)(A)-(C). To constitute a disability under the ADA, an impairment must “ ‘substantially limit[ ] the ability of an individual to perform a major life activity as compared to most people in the general population' ” Innes, 2024 WL 865864, at *7 (quoting 29 C.F.R. § 1630.2(j)(1)(ii)). But “[a]n impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.” 29 C.F.R. § 1630.2(j)(1)(ii). Indeed, an impairment that is only episodic can still constitute a disability under the ADA if it “substantially limit[s] a major life activity when active.” 42 U.S.C. § 12102(4)(D).
Not every impairment constitutes a disability under the ADA. See Thomson v. OdysseyHouse, No. 14-CV-3857, 2015 WL 5561209, at *17 (E.D.N.Y. Sept. 21, 2015) (citing 29 C.F.R. § 1630.2(j)(1)(ii)), aff'd, 652 Fed.Appx. 44 (2d Cir. 2016) (summary order). “[P]laintiff's allegations must contain sufficient factual support for his or her purported limitations, such as describing in some detail the frequency, duration, or severity of his or her limitations.” Earl v. GoodSamaritan Hosp. of Suffern N.Y., 625 F.Supp.3d 292, 304 (S.D.N.Y. 2022); see 29 C.F.R. § 1630.2(j)(4) (factors to consider include the “condition, manner, or duration” of the performance of the affected major life activity); Norman, 492 F.Supp.3d at 163 (noting that “duration of an impairment” is relevant factor). “Allegations that merely track the language of the statute or vague, conclusory assertions without details on how a plaintiff's condition actually affects a major life activity are insufficient to survive a motion to dismiss.” Baluch v. 300West 22 Realty, LLC, No. 21-CV-9747, 2023 WL 112547, at *5 (S.D.N.Y. Jan. 5, 2023).
Courts routinely dismiss claims under the ADA alleging discrimination and failure to accommodate an alleged allergy to a vaccine that was mandated by an employer. The rationale for the majority of the decisions is that the complaint failed to allege facts supporting a plausible inference that the allergy to the vaccine substantially limited a major life activity such as the ability to work. See, e.g., Perez v. New York Presbyterian/Weill Cornell Medical Ctr., 2024 WL 1514216 (S.D.N.Y. Apr. 8, 2024) (dismissing ADA claim because plaintiff who claimed allergy to vaccine failed to provide any factual details about the frequency, severity or duration of her allergic reaction or how the allergy substantially impaired her ability to work). Some courts also have found that a temporary reaction to a vaccine is insufficient to demonstrate a disability under the ADA. Vargas v. St. Luke's-Roosevelt Hosp. Ctr., No. 16-CV-5733, 2020 WL 2836824, at *6 (S.D.N.Y. June 1, 2020) (“[A] short-term impairment, absent long-term impact, is insufficient to qualify as substantially limiting a major life activity, as required to qualify as a disability under the ADA.”); Shaughnessy v. Xerox Corp., No. 12-CV-6158, 2015 WL 1431687, at *3 (W.D.N.Y. Mar. 27, 2015) (“It is well-setled that a temporary, non-severe injury does not constitute a disability under the ADA because such an injury does not substantially impair the person suffering the injury.”);Jacobs v. Mercy Health, No. 22-CV-1204, 2024 WL 894861, at *9 (E.D. Mo. Mar. 1, 2024) (finding on summary judgment that temporary reaction to vaccine did not amount to disability) (collecting cases).
Here, the complaint contains no facts to support a plausible inference that Plaintiff's alleged allergy to the vaccine (if in fact he has one) substantially limits his ability to work. To the contrary, Plaintiff's complaint makes clear that his alleged allergy does not impair his ability to work, as he concedes he can work from home. Plaintiff does not identify the particular ingredient(s) of the COVID-19 vaccine to which he had an allergic “contraindication” nor state that he had severe allergic reactions after receiving prior vaccines. Thus, the claim for disability discrimination under the ADA should be dismissed.
b. Failure to Accommodate
“To allege a violation of the ADA for failure to provide a reasonable accommodation, a plaintiff must allege that (1) plaintiff is a person with a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of [her] disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.” Thomson, 652 Fed.Appx. at 46; see Dooley, 636 Fed.Appx. at 18 (to same effect). “[P]laintiff must plead sufficient facts to raise the inference that the failure to accommodate was motivated by discriminatory intent.” Verne, 2022 WL 4626533, at *15. “The ADA envisions an ‘interactive process' by which employers and employees work together to assess whether an employee's disability can be reasonably accommodated.” Noll v. Int'l Bus. Machines Corp., 787 F.3d 89, 98 (2d Cir. 2015). “The employee possesses the initial responsibility to inform the employer that [he] needs an accommodation and to identify the limitation that needs accommodating.” Conway v. Healthfirst Inc., No. 21-CV-6512, 2022 WL 4813498, at *5 (S.D.N.Y. Sept. 30, 2022). Once the process is triggered, “the employer must make a reasonable effort to determine an appropriate accommodation based on the particular job involved and consultation with the employee ....” Grimes v. New York & Presbyterian Hosp., No. 23-CV-652, 2024 WL 816208, at *7 (S.D.N.Y. Feb. 26, 2024); see Conway, 2022 WL 4813498, at *5 (to same effect). “ ‘An employee who is responsible for the breakdown of the interactive process may not recover for a failure to accommodate.' ” Conway, 2022 WL 4813498, at *5 (quoting Nugent v. St. Lukes-RooseveltHosp. Ctr., 303 Fed.Appx. 943, 946 (2d Cir. 2008)).
Because Plaintiff has failed to allege that he is a person with a disability within the meaning of the ADA, he does not satisfy the requirements for a failure to accommodate claim. Accordingly, the failure to accommodate claim also should be dismissed. See Patel v. NYULangone Hosps., No. 20-112, 2021 WL 4852426, at *3 (2d Cir. Oct. 19, 2021) (summary order); Conway, 2022 WL 4813498, at *6. However, the ADA claims should be dismissed without prejudice, as it is conceivable Plaintiff might be able to plead facts sufficient to state a claim of discrimination or failure to accommodate under the ADA.
4. Whether Plaintiff States a Claim of Discrimination Under State or City Law
Although Plaintiff does not expressly bring claims under New York State or City law, the Court is required to construe the complaint liberally and to consider state law claims. McLeod v. Jewish Guild for the Blind, 864 F.3d 154 (2d Cir. 2017).
Both New York State and New York City law prohibit discrimination on the basis of religion and disability and require reasonable accommodation of both. N.Y. Exec. Law §§ 292(21-e), 296; N.Y.C. Admin. Code § 8-107(a). Both state that an accommodation that causes an undue hardship on the employer need not be granted. N.Y. Exec. Law § 292(21-e); N.Y.C. Admin. Code § 8-107(3). The laws have slightly different definitions of disability. Under the State law, disability is defined in relevant part as “a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques” that does not “prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.” N.Y. Exec. Law 292(21). The City law defines disability in relevant part as “any physical, medical, mental or psychological impairment.” N.Y.C. Admin. Code 8-102. The New York City law in general is broader than the New York State law in its protections for employees. Nieblas-Love v. New York City Housing Authority, 165 F.Supp.3d 51, *74 (S.D.N.Y. 2016).
Importantly here, neither statute requires exhaustion of administrative remedies. Rather, a claim can be brought directly in court. Both carry a three-year state of limitations for claims brought directly to court. N.Y. C.P.L.R. § 214(2); N.Y.C. Admin Code § 8-502.
While Plaintiff's complaint currently does not adequately plead a religious belief that precludes him from taking the vaccine, his opposition brief suggests that he also had a religious objection to the vaccine. Thus, it is conceivable that Plaintiff could replead and set forth facts sufficient to state a claim of religious discrimination and failure to accommodate religious beliefs under state or city law. Similarly, while the complaint fails to set forth facts sufficient to state that Plaintiff has a disability within the city or state law definitions set forth above, it is conceivable he might be able to plead that he has a disability within the meaning of those laws and a failure to accommodate that disability. Accordingly, Plaintiff should be permited leave to amend as to potential state or city claims of religious or disability discrimination/failure to accommodate.
5. Constitutional Claim
Plaintiff contends Viacom violated his constitutional right to freedom of choice in medical care, which he states is the right to refuse unwanted medical treatment and the right preserving the doctor-patient relationship. He does not identify any provision of the Constitution to which he is referring. More fundamentally, only a state actor can be liable for violating a person's constitutional rights. See Hurley v. Irish-Am. Gay, Lesbian & Bisexual Group, 515 U.S. 557, 566 (1995); Jackson v. Metro. Edison Co., 419 U.S. 345, 349 (1974); Burton v.Wilmington Parking Auth., 365 U.S. 715, 721-22 (1961); Shelley v.. Kraemer, 334 U.S. 1, 13 (1948); Leeds v. Meltz, 85 F.3d 51, 54 (2d Cir.1996); Heisler v. Kralik, 981 F.Supp. 830, 837 (S.D.N.Y.1997). A plaintiff can show that a private entity is a state actor through one of three tests: compulsion, close nexus/entwinement, or public function. See Brentwood Acad. v. Tenn.Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296 (2001). Here, Plaintiff has not asserted facts, or even allegations, to support that Viacom is a state actor. Even if Viacom were somehow a state actor, both the Second Circuit and the Supreme Court, “have consistently recognized that the Constitution embodies no fundamental right that in and of itself would render vaccine requirements imposed in the public interest, in the face of a public health emergency, unconstitutional.” We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 293 (2d Cir. 2021), opinion clarified, 17 F.4th 368 (2d Cir. 2021). Therefore, Wood has not stated a claim for constitutional violations and his constitutional claims should be dismissed with prejudice.
6. Wrongful Termination
Although Plaintiff's complaint does not state a claim for wrongful termination, in his opposition to the motion to dismiss he says he is bringing a claim for wrongful termination. Opp. Br. ¶A. New York is an at-will state, which means that employees can be terminated for any reason other than an unlawful reason. Plaintiff points to no employment contract or policy that renders him anything other than an at-will employee. And, the Court has already addressed his claims of discriminatory discharge above. Accordingly, to the extent the complaint can be construed as stating an independent claim for common law wrongful discharge, such claim should be dismissed as a mater of law with prejudice. Bravia Cap. Partners, Inc. v. Fike, No. 09 CIV. 6375, 2010 WL 3359470, at *8 (S.D.N.Y. Aug. 5, 2010) (“There is no question that [plaintiff] was an at-will employee . . . New York law does not recognize a claim for wrongful termination in such a case.”); see also Peacock, 100 F.Supp.3d at 230 (“New York does not recognize a claim for wrongful discharge”) (citation omited).
7. Leave to Amend
District courts generally grant a pro se plaintiff an opportunity to amend a complaint to cure its defects, but leave to amend is not required where it would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). In this case, the complaint cannot be cured with respect to the Title VII religious discrimination claim because Plaintiff failed to file a charge with the EEOC within 300 days of his termination from employment alleging a claim under Title VII and such claim would therefore be time-barred. Similarly, there are no facts that would render Plaintiff's claim under GINA plausible, as his assertion about the vaccine modifying his DNA is based on vaccine misinformation and GINA does not cover such claims. Thus, Plaintiff should not be permited leave to replead his claim under GINA. Plaintiff also should not be given leave to replead his Constitutional or wrongful discharge claims because, respectively, Viacom is not a state actor subject to such claims and a cause of action for common law wrongful discharge is not viable in New York.
While the Court is skeptical that Plaintiff can add sufficient facts to support a plausible claim of disability discrimination, it is conceivable he can add facts describing his alleged allergy and how it limits a major life activity or facts describing a disability within the meaning of state or city law. Thus, Plaintiff should be given leave to replead his disability/failure to accommodate claim under the ADA, New York State and New York City law. Finally, Plaintiff should be given leave to replead a claim of religious discrimination and/or failure to accommodate under New York State and New York City law.
PLAINTIFF'S MOTION CHALLENGING THE CONSTITUTIONALITY OF THE EEOC
Plaintiff filed a motion that appears to be a partial response to Defendants' motion to dismiss but it is styled as a motion to “challenge the constitutionality of the EEOC” and, specifically, its guidance published during the COVID-19 Pandemic that GINA does not cover claims related to employer COVID-19 vaccine policies. He suggests that the EEOC is not enforcing GINA by issuing the guidance and that its guidance is unconstitutional as applied to him in violation of the Fifth and Fourteenth Amendments, which the Court construes as an alleged due process violation.
As discussed above, there can be no constitutional claim against Viacom because it is a private actor. Further, there is no due process violation for the EEOC's interpretation of GINA's standards. The EEOC routinely issues guidance on the laws it is charged with interpreting, and its vaccine guidance contains a straightforward reading of GINA. (To be clear, the Court does not rely on the guidance in its recommendation here because the plain language of GINA does not encompass the claim Plaintiff asserts.) Finally, the EEOC is an agency of the federal government and cannot be sued absent a waiver of sovereign immunity. McKoy v. Potter, 2009 WL 1110692, at *5 (S.D.N.Y. Apr. 21, 2009)(collecting cases finding “Congress did not expressly create a cause of action against the EEOC by employees of third parties.”) Accordingly, I recommend that Plaintiff's motion be denied. See Mitchell v. EEOC, 888 F. Sup. 710 (E.D.PA 1995) (rejecting plaintiff's claim that application of Title VII standards to underlying discrimination charge amounted to denial of due process).
CONCLUSION
For the reasons set forth above, I respectfully recommend that the complaint be dismissed with prejudice except as to the claims under the ADA, New York State and New York City Human Rights Laws, which should be dismissed without prejudice. Additionally, the motion challenging the constitutionality of the EEOC should be denied.
NOTICE
Plaintiff shall have seventeen days and Defendant shall have fourteen days from this date to file writen objections pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b) to this Report and Recommendation. If Defendant files writen objections to this Report and Recommendation, Plaintiff may respond to the objections within seventeen days after being served with a copy. Fed. R. Civ. P.72(b)(2). If Plaintiff files writen objections, Defendant may respond to the objections within fourteen days.
Objections and responses to objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Laura Taylor Swain at 500 Pearl Street, New York, NY 10007-1312, to the chambers of the undersigned magistrate judge, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any request for an extension of time to file objections must be directed to Judge Swain. Failure to file 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 (1985).