Patel v. NYU Langone Hospitals

20-112-cv
Patel v. NYU Langone Hospitals

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 19th day of October, two thousand twenty-one.

PRESENT:
John M. Walker, Jr.,
Robert D. Sack,
Susan L. Carney,
Circuit Judges.
_____________________________________

Pankaj R. Patel,

Plaintiff-Appellant,

v. 20-112

NYU Langone Hospitals,

Defendant-Appellee.
_____________________________________

FOR PLAINTIFF-APPELLANT: Pankaj R. Patel, pro se,
Ronkonkoma, NY.

FOR DEFENDANT-APPELLEE: Michael S. Arnold, Mintz,
Levin, Cohn, Ferris, Glovsky
& Popeo, P.C., New York,
NY.
 Appeal from a judgment of the United States District Court for the Eastern District of New

York (Kuntz, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is VACATED and the case is REMANDED

for further proceedings.

Appellant Pankaj Patel, pro se, sued his former employer, New York University (“NYU”)

Langone Hospitals, asserting religious discrimination and retaliation claims under Title VII of the

Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.; disability discrimination under the

Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.; and retaliation and

interference with his rights under the Family and Medical Leave Act (“FMLA”), 29 U.S.C.

§§ 2601 et seq. The district court granted NYU’s motion to dismiss the complaint in a brief order

offering no analysis. We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal.

I. Shortcomings of Patel’s Appellate Brief

We “liberally construe pleadings and briefs submitted by pro se litigants, reading such

submissions to raise the strongest arguments they suggest.” McLeod v. Jewish Guild for the Blind,

864 F.3d 154, 156 (2d Cir. 2017) (per curiam) (internal quotation marks omitted). Nevertheless,

pro se appellants must comply with Federal Rule of Appellate Procedure 28(a), which “requires

appellants in their briefs to provide the court with a clear statement of the issues on appeal.” Moates

v. Barkley, 147 F.3d 207, 209 (2d Cir. 1998) (per curiam). We may consider “abandoned any

claims not adequately presented in an appellant’s brief,” even if the appellant is proceeding pro se.

Schwapp v. Town of Avon, 118 F.3d 106, 112 (2d Cir. 1997). But “[o]ur abandonment principles

are prudential, not jurisdictional, and we have discretion to consider abandoned arguments to avoid

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a manifest injustice.” Kotler v. Jubert, 986 F.3d 147, 159 n.49 (2d Cir. 2021) (internal quotation

marks omitted).

In his brief on appeal, Patel argues in conclusory fashion that he satisfied the requirements

for stating ADA discrimination and FMLA retaliation claims and pleaded the necessary elements

of those claims. He does not explain, however, how the district court erred in its ruling that he

failed to state claims under the numerous statutes that he invoked. Although it may be argued that

he thus abandoned any challenge on appeal to the complaint’s dismissal, the district court’s order

did not explain the reason for its decision or describe how Patel’s allegations were deficient. It

thus gave Patel little basis for mounting his challenge on appeal. 1 In light of this observation, we

choose to exercise our discretion and excuse Patel’s conclusory challenge in the interest of

avoiding manifest injustice.

II. Sufficiency of the Complaint’s Allegations

We review de novo the dismissal of a complaint for failure to state a claim. See Chambers

v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). To survive a Rule 12(b)(6) motion to

dismiss, the complaint must plead “enough facts to state a claim to relief that is plausible on its

1
The Federal Rules of Civil Procedure do not require district courts to provide reasoning when
they determine Rule 12 motions. See Fed. R. Civ. P. 52(a)(3) (“The court is not required to state
findings or conclusions when ruling on a motion under Rule 12[.]”). Although the district court
invoked the general Rule 12(b)(6) standard, its brief order of dismissal gave this Court little basis
for conducting a “meaningful appellate review.” Rudenko v. Costello, 322 F.3d 168, 170 (2d Cir.
2003). We have repeatedly pointed out that the better practice is for district courts to explain their
reasoning. In Watkins v. City of New York, we noted that “[w]e do not generally require that district
courts set forth in exhaustive detail their rationale for dismissing actions brought by pro se
litigants,” but we emphasized that “notions of simple fairness suggest that a pro se litigant should
receive an explanation before his or her suit is thrown out of court.” 768 F. App’x 101, 102 n.1
(2d Cir. 2019) (summary order) (internal quotation marks omitted). Cases in which this Court has
affirmed orders that contained little or no reasoning usually have involved vexatious litigants or
patently frivolous claims in which amendment would not cure any deficiency. See, e.g., Bank v.
Alarm.com Holdings, Inc., 828 F. App’x 5, 8 (2d Cir. 2020) (summary order). This case does not
present any such situation.

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face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (“[Although] a court must accept as true all of the allegations contained in a

complaint,” this tenet is “inapplicable to legal conclusions” and “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not suffice.”). To

survive a Rule 12(b)(6) motion to dismiss in an employment discrimination case, a plaintiff need

only plausibly allege facts that give rise to an inference of unlawful conduct. See Vega v.

Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 (2d Cir. 2015).

In the discussion below, we describe allegations that Patel makes in his complaint. We also

note factual allegations that he makes in letters submitted to the district court and to our Court.

Because we decide that these are enough to support remand to allow Patel an opportunity to

replead, we limit our review of the Rule 12(b)(6) dismissal to pointing out areas in which Patel’s

allegations are only marginally sufficient and whose shortcomings might have lay behind the

district court’s dismissal order. On remand, Patel—if he wishes to proceed—should file an

amended complaint addressing these areas and stating additional factual allegations in support of

the claims he wishes to pursue.

A. Religious Discrimination Claim

A plaintiff is entitled to a reasonable accommodation for his religious beliefs, as long as

that accommodation does not impose an undue hardship on his employer. See Cosme v. Henderson,

287 F.3d 152, 158 (2d Cir. 2002) (citing 42 U.S.C. § 2000e(j)). For his complaint to give rise to

an inference of religious discrimination, Patel needed to plausibly allege that (1) he held a bona

fide religious belief conflicting with an employment requirement; (2) he informed his employer of

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this belief; and (3) he was disciplined for failing to comply with the conflicting employment

requirement. See Baker v. Home Depot, 445 F.3d 541, 546 (2d Cir. 2006). 2

Here, Patel alleges that, on May 5, 2017, he left work early with permission, after his work

was done, to attend a religious event. His complaint does not specify whether the event was

mandatory pursuant to his Hindu religion, nor whether he explained to his employer why he needed

to leave the office early. Patel alleges that his supervisor fired him for leaving. NYU argues on

appeal that the complaint leaves open the possibility that his supervisor was not aware of his

beliefs. Patel alleges in a letter filed after his complaint, however, that the supervisor previously

observed him reading a religious text and directed him not to read at work, providing some support

for the inference that she was generally aware of his religious beliefs.

B. Disability Discrimination and Failure-to-Accommodate Claims

To support an inference of disability discrimination, Patel needs to plausibly allege 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.” Woolf v. Strada, 949 F.3d 89, 93 (2d Cir. 2020) (per curiam) (footnote omitted).

Similarly, to support a failure-to-accommodate claim, he must plausibly allege the same first three

factors, and also that his employer refused to make a reasonable accommodation. See id.

In his complaint, Patel has alleged enough facts to suggest that he had a variety of medical

conditions, including ear, eye, dental, knee, shoulder, back, and sciatica problems, and he has

2
To the extent that Patel also alleged discrimination claims under the New York State Human
Rights Law, such claims are analyzed under the same standard as are Title VII and ADA claims,
and will stand or fall for the same reasons. See Spiegel v. Schulmann, 604 F.3d 72, 80 (2d Cir.
2010) (Title VII claims); Rodal v. Anesthesia Grp. of Onondaga, P.C., 369 F.3d 113, 117 n.1 (2d
Cir. 2004) (ADA claims).

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alluded to medical records he can provide in support of those allegations. As pleaded, however,

these are insufficient to support an inference of disability within the meaning of the ADA, the

second factor listed above. As to the third factor, his allegations also fall short: he does not describe

the essential functions of his job as a nuclear medicine technologist, nor whether he was able to

perform them.

Patel does allege some facts suggesting that his termination may have been motivated by

discrimination based on his disabilities, satisfying the fourth factor above: the complaint asserts

that his medically necessary absences caused scheduling difficulties and that when he informed

his supervisor of his eye injuries, she responded in a derogatory way. Regarding the additional

element for a failure-to-accommodate claim, Patel alleges that NYU denied him short term–

disability leave for a back injury, possibly supporting an inference that NYU failed to make a

reasonable accommodation.

Because the allegations raised in the complaint alone do not satisfy all the requirements for

a claim for discrimination or for a failure to accommodate, the district court did not err in

concluding that Patel failed to state a claim under the ADA. Nonetheless, the additional allegations

in Patel’s letter submissions and in his brief on appeal suggest that, given the opportunity to amend

his complaint, Patel could state an adequate claim. These include, for example, additional details

regarding his medical conditions that could support an inference of disability within the meaning

of the ADA; statements he made on appeal that he had received positive performance reviews

throughout the twenty years he worked for NYU; and his contention on appeal that he was

terminated because of his alleged disabilities.

C. FMLA Interference and Retaliation Claims

It is “unlawful for any employer to interfere with, restrain, or deny the exercise of[,] or the

attempt to exercise, any right provided under [the FMLA].” 29 U.S.C. § 2615(a)(1). For Patel’s

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complaint to give rise to an inference of interference with FMLA rights, he had to plausibly allege

that he was an eligible employee under the FMLA; NYU is an employer covered by the FMLA;

he was entitled under the FMLA to take leave; he gave notice to NYU of his intention to take

leave; and he was denied benefits to which he was entitled under the FMLA. See Graziadio v.

Culinary Inst. of Am., 817 F.3d 415, 424 (2d Cir. 2016). Similarly, for his complaint to give rise

to an inference of retaliation for using FMLA leave, Patel needed to plausibly allege that “1) he

exercised rights protected under the FMLA; 2) he was qualified for his position; 3) he suffered an

adverse employment action; and 4) the adverse employment action occurred under circumstances

giving rise to an inference of retaliatory intent.” Id. at 429 (internal quotation marks and footnote

omitted). An employer violates the FMLA when it considers an employee’s use of FMLA leave

as “a negative factor in its decision to terminate him.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d

161, 176 (2d Cir. 2006).

Patel alleges that NYU approved his application for FMLA leave related to his need for

dental surgery. This allegation suggests that he was eligible for FMLA leave, entitled to take it,

and gave NYU notice. He also alleges that he was fired for his absences (specifically, for a record

of absences culminating in his May 2017 early departure) and that NYU counted medical leave

covered by the FMLA against him in evaluating his attendance record. Patel took leave for eye

surgery in the month before May 2017, when he was dismissed, and had been approved for

upcoming FMLA leave for dental surgery. That temporal connection between a series of protected

absences and his firing for poor attendance gives rise to a plausible inference that he was fired for

taking FMLA leave. See Littlejohn v. City of New York, 795 F.3d 297, 320 (2d Cir. 2015) (holding

that allegations that “protected activity was followed closely by discriminatory treatment” were

sufficient to withstand a motion to dismiss (internal quotation marks omitted)); Summa v. Hofstra

Univ., 708 F.3d 115, 128 (2d Cir. 2013) (explaining that there is no “bright line” rule for

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determining temporal proximity and that this Court has found that even months-long gaps between

the exercise of a right and an adverse employment action could imply a causal connection). These

same allegations plausibly support the first, third, and fourth factors of a FMLA retaliation claim.

Patel did not address the second factor—whether he was qualified for his position—in his

district court filings, but he added in his appeal brief that he was qualified because he worked for

NYU for twenty years with positive performance evaluations. These allegations veer toward

successfully stating an FMLA and FMLA retaliation claim on remand.

III. Opportunity to Amend

The district court erred by failing to provide Patel with an opportunity to amend his

complaint because the record indicates that Patel could plausibly have alleged enough facts to give

rise to an inference of unlawful conduct. “A pro se complaint should not be dismissed without the

[c]ourt granting leave to amend at least once when a liberal reading of the complaint gives any

indication that a valid claim might be stated.” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014)

(internal quotation marks omitted); see also Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000)

(“Generally, leave to amend should be freely given, and a pro se litigant in particular should be

afforded every reasonable opportunity to demonstrate that he has a valid claim.” (internal quotation

marks and citation omitted)). Providing leave to amend is not necessary, however, when “the

proposed claim could not withstand a motion to dismiss” pursuant to Rule 12(b)(6) and would

therefore be futile. Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002). Here, the

district court did not explicitly rule that amendment was futile, much less explain why it would be

futile.

NYU points out that Patel did not expressly request an opportunity to amend, and on this

basis it argues that the district court committed no error by dismissing the complaint with prejudice

and offering Patel no opportunity to cure the complaint’s deficiencies. But NYU overlooks the

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“relaxed standard [that] applies with particular force to pro se litigants” when granting leave to

amend. Pangburn v. Culbertson, 200 F.3d 65, 70 (2d Cir. 1999). Indeed, NYU repeatedly argues

that the district court’s ruling was correct because Patel’s complaint was inadequate in ways

alluded to above. But its arguments suggest that Patel could plead sufficient facts in an amended

complaint to defeat dismissal. It is true, as NYU speculates, that some of Patel’s claims may be

time-barred or may not succeed because they were not properly exhausted. In sum, however, the

added facts in Patel’s letter submissions to the district court, which contextualize the events

described in his complaint, as well as his submissions to this Court, give at least some indication

that a valid claim “might be stated.” Id. at 70 (internal quotation marks omitted) (emphasis in

original). The district court should have given Patel both an explanation and at least one

opportunity to amend his complaint to cure its shortcomings.

CONCLUSION

For these reasons, we VACATE the judgment of the district court and REMAND the case

with directions that Patel—if he desires to proceed—be provided an opportunity to amend his

complaint.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court

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