Vlad-Berindan v. Life Worx Inc. et al

Filing 61

OPINION AND ORDER: Plaintiff's motions are denied, except for plaintiff's 50 motion to seal the medical records which is granted. The Clerk of Court shall seal those records attached as "Exhibit L," (ECF No. 44 at 54-83 ), for parties' eyes only. Defendants' 38 motion to dismiss plaintiff's claims under federal law is granted in its entirety. The Court declines to exercise supplemental jurisdiction over any state law claims. Any state law claim i s dismissed without prejudice, except plaintiff's discrimination claims under the NYHRL are dismissed for lack of subject matter jurisdiction as they are barred by the election of remedies. Accordingly, the Clerk of the Court shall enter jud gment and close the case. SO ORDERED by Magistrate Judge Lois Bloom, on 4/28/2014. (Copy of this Order and the attached copies of all unpublished decisions cited herein sent to pro se Plaintiff.) Forwarded for Judgment. (Latka-Mucha, Wieslawa)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

-----------------------------------------------------)(
LUCIA VLAD-BERINDAN,
Plaintiff,

OPINION AND ORDER
13 CV 1562 (LB)

-againstLIFEWORJC, INC. and JEAN N. HELLER,
Defendants.

-----------------------------------------------------)(
BLOOM, United States Magistrate Judge:

Plaintiff Lucia Vlad-Berindan brings this pro se employment discrimination action
against defendant LifeWorx, Incorporated ("LifeWorx") and Jean H. Heller ("Heller") pursuant
to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), the Age
Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"), the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA") 1 and various claims under New
York law. 2 Plaintiff claims that defendants discriminated against her on the basis of her race,
gender, age, national origin and disability. This matter was assigned to me on the parties'
consent. (ECF Nos. 7, 9, 12). Plaintiffs motions to withdraw consent, for recusal, to strike, for
sanctions, for default judgment, and for reconsideration of the Court's December 5, 2013 order
are denied. (ECF Nos. 41-42, 45-46, 49-51, 53-55). Plaintiffs motion to seal her medical
1

Although plaintiff did not check the ADA on her form complaint, she alleges elsewhere in her
complaint that defendants discriminated against her based on her disability. See e.g. Complaint
at 3, ~ 7; 7. (ECF No. 1) (Page numbers refer to those assigned by the Court's electronic filing
system; the paragraphs cited refer to paragraphs of the form complaint). Because prose
pleadings are "to be liberally construed," Erickson v. Pardus, 551 U.S. 89, 94 (2007), the Court
reads the complaint to include an ADA claim.
2
In addition to plaintiffs claims here, plaintiff filed a small claims action against defendant
LifeWorx in state court, as well as claims with the New York State Department of Labor, the
United States National Labor Relations Board, and the Internal Revenue Service. (ECF No. 11
at 1, fn.1; ECF No. 44 at 85-88, 90-95, 108, 110-115; ECF No. 60 at 7-9 (listing actions and
dispositions) & Exhibits at 70-80, 93-100).
1

records filed as "Exhibit L" of ECF No. 44 is granted. (ECF No. 50). Defendants move to
dismiss plaintiffs complaint pursuant to Rule l2(b)(l) and 12(b)(6) of the Federal Rules of Civil
Procedure. (ECF No. 38). For the reasons set forth below, defendants' motion to dismiss the
complaint is granted.

BACKGROUND
Plaintiff is a fifty-five year old former employee of defendant LifeWorx, a home staffing
company. See Compl. at 3, if 7 (ECF No. l). 3 During a two-month period in 2011, plaintiff was
hired by LifeWorx, entered into an Expert Services Agreement with LifeWorx on July 13, 2011
and accepted an assignment to work for Heller, one of LifeWorx's clients on or about July 17,
2011. Id. at 17-19. Plaintiff stopped working for Heller on or about October 4, 2011, when
Heller terminated the relationship with LifeWorx. Id. at 19-20, 56. Plaintiff has not received
any assignments from LifeWorx since that date. Id. at 8, 19-20.
On March 29, 2012, plaintiff filed a Verified Complaint of Discrimination with the New
York State Division of Human Rights ("NYSDHR ")against LifeWorx and Brian Martin, an
employee ofLifeWorx. Id. at 4, if 9; 8; 57-63 (NYSDHR Complaint). In the NYSDHR
Complaint, plaintiff checks the boxes to claim discrimination based on marital status, domestic
violence victim status, national origin, and sex, but not race, age or disability. Id. at 59. As to
3

Plaintiff attaches a number of documents to her Complaint, including the charge of
discrimination plaintiff filed with the New York State Division of Human Rights ("NYSDHR
Complaint"), a Notice issued by the Equal Employment Opportunity Commission ("EEOC")
acknowledging the filing of plaintiffs NYSDHR Complaint, the Determination and Order after
Investigation issued by the NYSDHR ("NYSDHR Determination"), and the Right to Sue notice
issued by the EEOC. The Court may consider these documents on a motion to dismiss. See
Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) ("[O]n a motion to dismiss, a
court may consider documents attached to the complaint as an exhibit or incorporated in it by
reference ....")(internal quotation omitted); Morris v. David Lerner Assocs., 680 F. Supp. 2d
430, 436 (E.D.N.Y. 2010) ("[W]ith respect to administrative filings (such as the NYSDHR and
the EEOC) and decisions, the Court may consider such documents because they are public
documents filed in state administrative proceedings as well as because they are integral to
plaintiffs claims.").
2

" .... '

the acts of discrimination, plaintiff checks the boxes for fired or laid off, did not call me back
after a lay-off, sexually harassed me, harassed or intimidated me (other than sexual harassment),
denied me leave time or other benefits, paid me a lower salary than other workers in my same
title, gave me different or worse job duties than other workers in my same title, and gave me a
disciplinary notice or negative performance evaluation. Id at 61. By letter dated April 25, 2012,
plaintiff was informed that her NYSDHR Complaint was dual-filed with the EEOC, charging
LifeWorx with a violation of federal law under Title VII. Id at 8, if 8; 52-53. The letter
informed plaintiff, inter alia, that she would have fifteen (15) days from the date of the final
determination by the NYSDHR to request review of their findings by the EEOC. Id. at 52.
On September 20, 2012, the NYSDHR found no probable cause that LifeWorx "engaged
in or are engaging in the unlawful discriminatory practice complained of." Id at 64-65. The
NYSDHR found that for the purposes of New York States Human Rights Law, plaintiff is not an
employee, but should be classified as an independent contractor. Even if she were an employee,
the NYSDHR found that "there is little evidence that [Vlad-Berindan] was subjected to
employment discrimination." Id
The NYSDHR Determination further informed plaintiff of her rights regarding appeal
and review: (1) she could appeal the decision to the New York State Supreme Court by filing
within sixty days after service of the Determination; and (2) she could seek review of the
Determination by the EEOC by written request submitted within fifteen days of her receipt of the
Determination. Id at 65-66. Plaintiff sought neither an appeal nor review by the EEOC.
In mid-December, 2012, plaintiff received the Dismissal and Notice of Rights from the
EEOC dated December 12, 2012. Id. at 5; 9; 54 (Dismissal and Notice of Rights for EEOC
Charge No. 160-2012-02685) ("Right to Sue Letter"). Plaintiff filed the instant action on March
21, 2013.
3

Defendant moves to dismiss plaintiff's complaint pursuant to Rule 12(b)( 1) and 12(b)(6)
of the Federal Rules of Civil Procedure. Defendants argue that plaintiff's Title VII claims are
untimely, that any ADA or ADEA claims are administratively unexhausted, and that plaintiff
cannot state a claim against Heller because she is not subject to Title VII liability. Defendants
also argue that plaintiff's state law intentional infliction of emotional distress claim is timebarred.

Moreover, defendants maintain that as all of plaintiff's federal claims should be

dismissed, this Court should decline to exercise jurisdiction over plaintiff's state law claims.
Plaintiff opposes defendants' motion and has filed multiple motions, attaching hundreds of pages
of documents.

DISCUSSION
I.

PLAINTIFF'S MOTIONS
Plaintiff's motions to withdraw consent, to strike, for recusal, for sanctions, for default

judgment, and to reconsider the Court's December 5, 2013 order are denied for the following
reasons.
Plaintiff's motion seeking to rescind her consent (ECF Nos. 51, 52) is denied because she
has not presented any "extraordinary circumstances" required by 28 U.S.C. § 636(c)(4) (The
court may, for good cause shown on its own motion, or under extraordinary circumstances
shown by any party, vacate a reference of a civil matter to a magistrate judge under this
subsection); Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, No. 04 Civ. 9651,
2011 WL 70593, at *3 (S.D.N.Y. Jan. 10, 2011)4 (a party's dissatisfaction with a magistrate
judge's decision does not constitute an extraordinary circumstance under § 636(c)(4)); Doe v.
Nat'/ Bd of Med Exam'rs, No. Civ. A. 99--4532, 2001 WL 1003206, at *4 (E.D.Pa. Aug.14,

4

The Clerk of Court is directed to send plaintiff the attached copies of all unreported cases.·
4

2001) ("Perceived friction between the party and the magistrate judge, even coupled with
adverse rulings, is not extraordinary, but is, in fact, quite ordinary and normal.")
Plaintiff also moves for reconsideration under Fed. R. Civ. P. 60 of the Court's December
5, 2013 Order. (ECF Nos. 40, 53 & 54).

The standard is strict for granting a motion for

reconsideration under either Rule 60(b) of the Federal Rules of Civil Procedure or under Local
Rule 6.3 of the Local Rules of the United States District Courts for the Southern and Eastern
Districts of New York.

Indeed, a district court will generally deny reconsideration unless the

moving party can point to either "controlling decisions or data that the Court overlooked matters that might reasonably be expected to alter the conclusion reached by the court." Lora v.
O'Heaney, 602 F.3d 106, 111 (2d Cir. 2010) (quoting Schrader v. CSX Transp., Inc., 70 F.3d
255, 257 (2d Cir. 1995)). Plaintiff fails to point to any controlling decisions or data that this
Court overlooked or that would otherwise lead this Court to alter its conclusion. Therefore,
plaintiffs motion for reconsideration is denied. Again, as stated in the original decision on
plaintiffs motion for recusal, "plaintiff has made no showing of bia.S, and none exists." (ECF
No. 40 at 3). Accordingly, plaintiff's December 10, 2013 renewed motion for recusal is denied. 5
(ECF Nos. 41, 42).
Plaintiff's motion for sanctions against defendants (ECF No. 49) is likewise denied
because plaintiff fails to allege any basis for the imposition of sanctions. Her accompanying
request for an extension of time to file a motion for sanctions is denied as moot. Finally, her
motion to strike (ECF Nos. 41, 42) and motion for default judgment (ECF Nos. 45-46) are also
denied as without basis.
5

Plaintiff reiterates the same bases for recusal stated in her prior motion for recusal, alleging that
"the Court granted all defendants contrary to the law requests, and ignored or dismissed all
plaintiffs entitled objection, requests, and/or motions. [T]he Court shows obvious bias and hate
toward disabling pro se plaintiff, and intentionally tort the sick plaintiff." (ECF No. 42 at 19).
5

Plaintiff's motion to seal the medical records she attached to her Opposition to Motion to
Dismiss filed December 10, 2013, specifically, Exhibit L 1-17 (ECF No. 44 at 54-83) is granted.

Shomo v. New York Dept. Of Corr. Servs., No. 9:04-CV-0910, 2007 WL 2580509, at *14, n. 84)
(N.D.N.Y. Sept. 4, 2007) (district courts routinely file medical records under seal to protect
plaintiffs privacy interests in his medical records).

II.

DEFENDANTS' MOTIONS
A. Standard of Review

On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure,
the Court must accept all factual allegations in the complaint as true and draw all reasonable
inferences in the plaintiffs favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.
2002). To survive a motion to dismiss, a plaintiff must plead "enough facts to state a claim to
relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see

also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "[A] plaintiffs obligation to provide the
grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal
quotation marks omitted). "In keeping with these principles," the Supreme Court has stated,
"[w]hile legal conclusions can provide the framework of a complaint, they must be supported by
factual allegations." Iqbal, 556 U.S. at 679.
As plaintiff is proceeding pro se, the Court is obliged to construe her complaint liberally,
"even as [it] examine[s] such complaint[] for factual allegations sufficient to meet the
plausibility requirement." Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (citation omitted).
"It is well-established that the submissions of a pro se litigant must be construed liberally and

interpreted 'to raise the strongest arguments that they suggest.'" Triestman v. Fed. Bureau of

6

Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.
1994)) (other citations omitted). However, the "duty to liberally construe a plaintiff's complaint
[is not] the equivalent of a duty to re-write it." Geldzahler v. New York Med. College, 663
F.Supp.2d 379, 387 (S.D.N.Y. 2009) (quoting 2 Moore's Federal Practice§§ 12.34[1][b], at 1261 (2005)). While the Court is "obligated to draw the most favorable inferences that [plaintiffs]
complaint supports, [it] cannot invent factual allegations that he has not pled." Chavis v.

Chappius, 618 F.3d 162, 170 (2d Cir. 2010).
The defendants also move to dismiss for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure 12(b)(l). "A case is properly dismissed for lack of subject
matter jurisdiction under Rule 12(b)(l) when the district court lacks the statutory or
constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
2000). "The standards for reviewing a motion to dismiss for lack of subject matter jurisdiction
under Rule 12(b)(l) are the same" as those under Rule 12(b)(6). Dupree v. Local 32BJ, No. 10CV-1894, 2010 WL 3430530, at *1 (E.D.N.Y. Aug. 30, 2010). Therefore, the Court must
"accept the factual allegations in the complaint as true, and draw all reasonable inferences in
favor of the plaintiff." Id. at *2 (internal citation omitted). "However, 'the tenet that a court must
accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions."' Id. (quoting Iqbal, 556 U.S. at 678).
B. No Individual Liability
Plaintiff names Jean N. Heller as a defendant to this action. Heller retained the services
'

'

of LifeWorx and plaintiff was assigned to work for Heller froin July to October 2011. However,
there is no individual liability under Title VII, the ADA or the ADEA. Guerra v. Jones, 421 F.
App'x 15, 17 (2d Cir. 2011) (Title VII and ADEA); see also Tomka v. Seiler Corp., 66 F.3d

7

1295, 1313 (2d. Cir. 1995) ("[I]ndividual defendants with supervisory control over a plaintiff
may not be held personally liable under Title VII."), abrogated on other grounds by Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); see also Garibaldi v. Anixter, Inc., 407 F.Supp.2d
449, 451 (W.D.N.Y. 2006) ("[T]here is no individual liability under any of the federal antidiscrimination statutes, including Title VII, the ADA, and the ADEA."). Therefore, defendant
Heller's motion to dismiss plaintiffs claims under Title VII, the ADA and the ADEA is granted
for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
C. Title VII Claim Is Barred by the 90-Day Statutory Filing Period
1.

Plaintiff Failed To File Her Complaint Within The Statutory Filing Period

Title VII provides that "[i]t shall be an unlawful employment practice for an employer( l) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against
any individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or national origin . . . ." 42 U.S.C. §
2000e-2(a). "To maintain a discrimination action under Title VII, a plaintiff must file a timely
charge with the EEOC or the equivalent state agency, receive from that agency a right to sue
letter, and commence an action within 90 days after receipt of that letter." Walter v. Hamburg

Centr. Sch.I Dist., No. 04 CV 996S, 2007 WL 1480965 at *3 (W.D.N.Y. 2007) (citing Van Zant
v. KLM Royal Dutch Airlines, 80 F.3d 708, 712 (2d Cir. 1996); see 42 U.S.C. § 2000e-5(t)(l)
(specifying that a Title VII action must be brought within 90 days of the claimant's notification
of her Right to Sue). There is a presumption that a notice provided by a government agency was
mailed on the date shown on the notice. See Sherlock v. Montefiore Med. Ctr., 84 F.3d 522, 526
(2d Cir. 1996) (citing Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 148 & n. 1 (1984)).
There is a further presumption that a mailed document is received three days after its mailing.

8

See id. at 525. The initial presumption is not dispositive, however, "(i]f a claimant presents
sworn testimony or other admissible evidence from which it could reasonably be inferred either
that the notice was mailed later than its typewritten date or that it took longer than three days to
reach her by mail." Id. at 526.
Plaintiff does not dispute that her claim is untimely; in fact, she submitted a "motion for
extension of time to file" with her complaint. (ECF No. 5). The Right to Sue letter is dated
December 12, 2012 and, presumably, was received on December 15, 2012. (ECF No. 1 at 54);

Sherlock, 84 F.3d at 525. However, the complaint provides two different dates of receipt. In
paragraph twelve of the form complaint, plaintiff states that she received the Right to Sue letter
on December 18, 2012. Id. at 5. Later, she states that she received the Right to Sue letter on
December 15, 2012. Id. at 9. Regardless of which date ofreceipt is correct, plaintiffs complaint
is time-barred. As plaintiff commenced this action on Thursday, March 21, 2013, which is,
either 93 or 96 days 6 after she received the Right to Sue letter from the EEOC, plaintiff failed to
file suit within the required ninety days. Thus, her Title VII claim is time-barred. See 42 U.S.C.
§ 2000e-5(t)(l); Zerilli-Edelglass v. NYC. Transit Auth., 333 F.3d 74, 78 (2d Cir. 2003)
(affirming dismissal of complaint received by pro se office 92 days after receipt of Right to Sue
notice); Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984) (dismissing
action filed 97 days after receipt); Ford v. Consol. Edison Co. of NY Inc., No. 03 Civ. 9587,
2006 WL 538116, at *6-7 (S.D.N.Y. Mar. 3, 2006) (dismissing Title VII claim as time barred
where lawsuit was filed 92 days after plaintiffs attorney received Right to Sue letter); Manley v.

NYC. Police Dep't, No. 05 Civ. 679, 2005 WL 2664220, at *3-5 (E.D.N.Y. Oct. 19, 2005)

6

Friday, March 15, 2013, was ninety days from Saturday, December 15, 2012; Monday, March
18, 2103, was ninety days from Tuesday, December 18, 2012. See
http://www.timeanddate.com/date/dateadd.html (last visited March 26, 2014).
9

(dismissing Title VII claim as untimely where lawsuit was filed 91 days after receipt of Right to
Sue letter).
2. Plaintiff Is Not Entitled to Equitable Tolling
The ninety-day period, however, is not jurisdictional, but rather is a statute of limitations
and thus subject to equitable tolling. Johnson v. Al Tech Specialties Steel Corp., 731 F .2d at 146
("The Supreme Court ... has evinced a policy of treating Title VII time limits not as jurisdictional
predicates, but as limitations periods subject to equitable tolling."). "Equitable tolling is only
appropriate in rare and exceptional circumstances such as when a party is prevented in some
extraordinary way from exercising his rights." Cherry v. City of New York, 381 F. App'x 57, 5859 (2d Cir. 2010) (internal quotations and citations omitted). A plaintiff bears the burden of
proving that tolling is appropriate. Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000). A
plaintiff must show that she (1) has acted with reasonable diligence during the time period she
seeks to have tolled and (2) has proved extraordinary circumstances justifying application of
equitable tolling. Zerilli-Edelglass, 333 F.3d at 80-81. This Circuit has been clear that "[a]s a
general matter, we set a high bar to deem circumstances sufficiently 'extraordinary' to warrant
equitable tolling." Dillon v. Conway, 642 F.3d 358, 363 (2d Cir. 2011).
Plaintiffs explanation of her tardy filing of the instant complaint is contained in her
motion for extension of time to file her complaint. (ECF No. 5 at 2 ("On January 16, 2013, I
underwent a surgery related with a previous vital surgery I underwent on 4/10/2012. The pain
and suffering before, during, and after surgery impeded me to file in time the lawsuit."), and in
her affirmation, which asserts "[my] medical past and present condition, conditions which are
also grounds for good cause and excusable neglect . . . for extension of all her late filings ...
including ... this law suit three days late." (ECF No. 42 at 9). She lists two heart surgeries, that

10

she is under psychiatric treatment, and that after her second surgery in January 2013, she "still
suffers aggravate depression, panic attack, pain etc, and functional limitations." Id at 10. She
also states that "[d]ue to a length period of time of recovery and the use of strong pain killers and
other strong medicine, on March 7, 2013 plaintiff was admitted for UBH treatment" 7 and that she
"has days when she cannot walk without being attended, and days when she cannot focus to
computer pleadings work for her cases." Id
Plaintiff also files one hundred thirty-three pages of exhibits which include about thirty
pages of medical records with her opposition. 8 Plaintiffs medical records reflect that she had
open heart surgery on April 10, 2012 (more than eight months before she received the EEOC
Right to Sue letter).

Following surgery, plaintiff convalesced for six to eight weeks.

In

December, 2012, plaintiff became ill with bronchitis and other respiratory maladies and was
concerned that she was allergic to the metal wires implanted during her heart surgery. On
January 16, 2013, plaintiff had surgery to remove that metal and was released the next day,
January 17, 2013. Plaintiff has received treatment for depression, anxiety and panic attacks

7

However, the letter she attaches does not state that plaintiff was "admitted" for treatment, rather
it states that her healthcare provider has approved her for benefits to cover mental health
treatment. (ECF 44 at 75);
8
As noted above in footnote three, a complaint is deemed to include any written instrument
attached to it as an exhibit or any statement or documents incorporated in it by reference. In
addition, "[a] court may consider matters outside the pleading for the purposes of adjudicating a
motion to dismiss if those documents are 'integral' to a plaintiffs claims--even if the plaintiff
fails to append or allude to them to his complaint." Grosz v. Museum of Modern Art, 09 Civ.
3706, 2010 WL 88003, at *23 (S.D.N.Y. Jan. 6, 2010) (citing Cortec Indus., Inc. v. Sum Holding
L.P., 949 F.2d 42, 44 (2d Cir. 1991)); accord Ho/owecki v. Fed. Express Corp., 440 F.3d 558,
565--66 (2d Cir. 2006); Yung v. Lee, 432 F.3d 142, 146--47 (2d Cir. 2005). This is particularly
true where, as here, plaintiff is the party introducing extrinsic documents in opposition to
defendants' motion to dismiss. Adams v. Crystal City Marriott Hotel, No. 02 Civ. 10258, 2004
WL 744489, at *3 (S.D.N.Y. Apr. 6, 2004). ([T]ypically the problems associated with
extraneous material at the motion to dismiss stage arise because a defendant has submitted
evidence in support of a motion to dismiss, rather than because a plaintiff has submitted evidence
in opposition to a motion to dismiss.")
11

from February 24, 2012 to at least November 23, 2012 (before the Right to Sue letter was
issued), and her doctor visit on April 8, 2013 (after the statute of limitations expired) reflects her
treatment for a panic attack. (ECF 44 at 58-59, 76). The records also reflect that plaintiff had
numerous doctors' appointments during the period she seeks to toll (December 12, 2012,
December 17, 2012, December 31, 2012, January 11, 2013, January 14, 2013 and January 28,
2013) and was prescribed various medications for the treatment of her heart and psychological
conditions. (ECF No. 44 at 61-70; 73-74).
"While case law reflects that a plaintiffs medical or mental condition can justify
equitable tolling, a 'conclusory and vague claim, without a particularized description of how [a]
condition adversely affected [a plaintiffs] capacity to function generally or in relationship to the
pursuit of her rights, is manifestly insufficient to justify any further inquiry into tolling.'"
Webster v. Potter, 746 F.Supp.2d 635, 641(S.D.N.Y.2010) (quoting Boos, 201 F.3d at 185);

accord Hedgepeth v. Runyon, No. 96 Civ. 1161, 1997 WL 759438 at *4-5 (S.D.N.Y. Dec. 10,
1997) (to receive tolling of Title VII statute oflimitations based on illness, plaintiff bears the
burden to show that "'disability [was] of such a nature that plaintiff [was] unable to manage his
business affairs and [was] incapable of comprehending and protecting his legal rights and
liabilities."').
Plaintiff fails to meet the high bar of"extraordinary" circumstances to warrant equitable
tolling here. Dillon v. Conway, 642 F.3d at 363; Kantor-Hopkins v. Cyberzone Health Club, No.
06 Civ. 643, 2007 WL 2687665 at *7 (E.D.N.Y. Sept. 10, 2007) ("Whether equitable tolling
should be applied is not a question of the illness' severity and it is not a question of
hospitalization"; rather, the issue is "whether a party can show that the illness was so
extraordinary that it functioned as a complete bar to the procedural steps required to file suit in a
12

timely fashion throughout the entire period in question."). Plaintiff not only fails to demonstrate
that her medical or mental health circumstances were extraordinary, she also fails to show that
her condition during the ninety-day period she seeks to toll was different from her condition
before or after that period. Viti v. Guardian Life Insurance Co. ofAmerica, No. 10 Civ. 2908,
2013 WL 6500515, at 4-5 (S.D.N.Y. Dec. 21, 2013) (statute of limitations in long-term disability
insurance contract was not equitably tolled where, although plaintiffs condition induced by the
September 11, 2001 terrorist attacks was severe and genuine, his condition during the tolling
period was no different than his condition before or after the tolling period). As plaintiff fails to
demonstrate extraordinary circumstances, she is not entitled to equitable tolling.
Plaintiff has not shown that her medical and mental health condition was of such a nature
that she was unable to manage her affairs and that she was incapable of comprehending her legal
rights. Boos, 201 F.3d at 185 (plaintiff bears the burden of providing a "particularized
description of how her condition adversely affected her capacity to function generally or in
relationship to the pursuit of her rights."). Plaintiff only states that she "has days when she
cannot walk without being attended, and days when she cannot focus to computer pleadings
work for her cases." (ECF No. 42 at 10); see, e.g., Webster v. Potter, 746 F. Supp. 2d at 641
(plaintiff failed to explain how his alleged medical, mental, and legal issues affected his capacity
to function, nor did plaintiff connect these issues to his late filing or demonstrate that he acted
with reasonable diligence during the period he sought to toll), citing, inter alia, DaCosta v.
Union Local 306, No. 08 Civ. 2470, 2009 WL 2986388, at *11 (S.D.N.Y. Aug. 12, 2009)
(plaintiff not entitled to equitable tolling where he did not show that his paranoid schizophrenia,
anxiety, frustration, anger, and memory troubles were so severe that they rendered him unable to
pursue his legal rights during the relevant time period.); Gannon v. Continuum Health Partners,
13

Inc., No. 06 Civ. 5133, 2007 WL 2040579, at *5 (S.D.N.Y. July 12, 2007) ("[C]ounsel has not
indicated how plaintiffs depression adversely affects her capacity to function. Plaintiff has[,]
therefore, failed to establish[] that equitable [t]olling is warranted because of her mental
illness."); Victoria/ v. Burge, 477 F.Supp.2d 652, 655 (S.D.N.Y. 2007) (litigant was required to
"demonstrate some form of incapacitation due to the mental illness that affected his ability to act
with due diligence during the time period at issue")).
Moreover, plaintiff fails to connect her heart condition, anxiety and depression to the late
filing of the complaint and fails to demonstrate that she "acted with reasonable diligence during
the time period [she] seeks to have tolled .... " Zerilli-Edelglass, 333 F.3d at 80 (internal quotation
marks and citations omitted). Plaintiff received the EEOC's December 12, 2012 Right to Sue
letter informing her that she was required to file her lawsuit within ninety days of her receipt of
the letter. Plaintiff underwent surgery on January 16, 2013, approximately one month after the
Right to Sue letter was issued and two months before the filing deadline in March, 2013.
Although she was in the hospital two days and had six doctors' visits, with ongoing treatment for
depression, anxiety, panic attacks and a heart condition, plaintiffs allegations do not
demonstrate that these health problems rendered her unable to pursue his legal rights during the
ninety-day limitations period. Zerilli-Edelglass, 333 F.3d at 79-80 (employee not entitled to
equitable tolling where she was apparently capable of writing coherent letters on her own behalf,
as well as making numerous phone calls to the EEOC during the time period in question, and
nothing in the employee's papers evidenced why these mental impairments, however distressing,
had any negative impact on her capadty to file the EEOC charge in a timely manner); see also

Predun v. Shoreham-Wading River Sch. Dist., 489 F.Supp.2d 223, 229-30 (E.D.N.Y. 2007)
(Plaintiffs epilepsy "in no way interfered with the carrying out of his obligatfons and his
14

knowledge of all circumstances surrounding his daily life and employment" where he "was able
to visit his psychologist and his neurologist when necessary."). Plaintiff fails to establish that her
conditions prevented her from filing this action in a timely manner; she was, for example, able to
timely attend her doctors' appointments and was able to continue her unpaid overtime claim
before the New York State Department of Labor. (ECF No. 44 at 61-70, 73-74, 94). Moreover,
minimal information was required for plaintiff to file an action using the Court's employment
discrimination form complaint. Timely filing of the form complaint would have been sufficient
and preserved plaintiff's rights. As defendants point out in their motion to dismiss, plaintiff
originally dated her complaint March 15, 2013, a date on which it would have been timely-filed.
Because equitable tolling is to be applied "sparingly,'' National R.F Passenger Corp. v.

Morgan, 536 U.S. 101, 113 (2002), and not out of "vague sympathy for particular litigants,"
Baldwin County Welcome Ctr. v. Brown, 466 U.S. at 152, plaintiffs conclusory claims of
medical and mental problems are "manifestly insufficient to justify any further inquiry into
tolling,'' Boos, 201 F.3d at 185. Because plaintiff did not timely file her complaint and because
she is not entitled to equitable tolling of the 90--day statutory deadline, her complaint must be
dismissed as time-barred. See Johnson v. Al Tech Specialties Steel Corp., 731 F.2d at 146
(without "a recognized equitable consideration, the court cannot extend the limitations period
by even one day").

9

Accordingly, defendants' motion to dismiss plaintiff's claim under Title

VII is granted.

9

To the extent that plaintiff is also attempting to argue that her delay in filing should be excused
because it is only a few days beyond the limitations period, "the standard is not whether the
delay is de minimus, but rather whether plaintiff acted with reasonable diligence and [has]
proven that his circumstances were so extraordinary that equitable tolling should apply." O'Leary
v. Town ofHuntington, No. 11-CV-3754, 2012 WL 3842567, at *6 (E.D.N.Y. Sept. 5, 2012). As
the Supreme Court has explained, "[f]iling deadlines, like statute of limitations, necessarily
operate harshly and arbitrarily with respect to individuals who fall just on the other side of them,
15

D. Plaintiff's ADA and ADEA Claims Are Unexhausted
Defendants move to dismiss plaintiffs ADA and ADEA claims on the ground that they
are unexhausted. Although age and disability claims were absent from her NYSDHR Complaint,
(ECF No. 1 at 59), plaintiff checked the line for claims under the ADEA and the boxes for age
and disability in her form complaint, and states that she was discriminated on the basis of both.
Id. at 1, 3, 7. Although the Court liberally construes the complaint to include these claims, they

fail not only because there are no facts alleged to support these claims, but because plaintiff
failed to exhaust her claims under the ADA and the ADEA. 10
A plaintiff must exhaust her administrative remedies with the EEOC or an authorized
agency before bringing ADA or ADEA claims in federal court. See 29 U.S.C. § 626(d)(2) ("No
civil action may be commenced by an individual under [the ADEA] until ... a charge alleging
unlawful discrimination has been filed with the Equal Employment Opportunity Commission");
42 U.S.C. § 121l7(a) (adopting exhaustion requirement of Title VII codified at 42 U.S.C. §
2000e-5 for the ADA); Ximines v. George Wingate High Sch., 516 F.3d 156, 158 (2d Cir. 2008)
(ADEA). In New York, a "dual filing" state, a plaintiff has 300 days from the time the allegedly
but if the concept of a filing deadline is to have any content, the deadline must be enforced."
United States v. Locke, 471 U.S. 84, 101 (1985); see Carey v. Int'/ Bhd. of Elec. Workers Local
363 Pension Plan, 201 F.3d 44, 47 (2d Cir.1999) ("[S]tatutes of limitations are not to be
disregarded by courts out of a vague sympathy for particular litigants. Indeed, strict adherence to
limitation periods is the best guarantee of evenhanded administration of the law." (internal
quotation marks and citations omitted).
10

Moreover, even if plaintiff had exhausted her ADA and ADEA claims, they too, like
her Title VII claims, are time-barred. See Stalter v. Bd. of Coop. Educ. Servs.of Rockland Cnty.,
235 F.Supp.2d 323, 332 (S.D.N.Y. 2002) ("The ADA incorporates the statute of limitations of
Title VII of the Civil Rights Act of 1964."). "Similarly, a court may hear only those ADEA
claims that are included in a timely filed EEOC charge." Walter v. Hamburg Central School
District, No. 04 CV 996, 2007 WL 1480965, at *3 (W.D.N.Y. May 18, 2007) (citing Holowecki
v. Federal Express Corp., 440 F.3d at 562). However, "[u]nlike Title VII, the ADEA does not
require that the claimant receive a right to sue letter prior to commencing an action in federal
court. However, if the EEOC issues a right to sue letter, the claimant must commence an action
within 90 days after its receipt." Id. at FN 3.
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discriminatory act occurred to file a Title VII charge with the EEOC or the New York State
Division of Human Rights. Nat'/ R.R. Passenger Corp. v. Morgan, 536 U.S. at 109. This
requirement is an "essential element" of the statutory scheme. Butts v. City of New York Dep 'tt

ofHousing, 990 F.2d 1397, 1401 (2d Cir. 1993). As the Second Circuit has noted, the purpose of
the notice provision "would be defeated if a complainant could litigate a claim not previously
presented to and investigated by the EEOC." Id In other words, a party may only raise claims
in federal court that were asserted in its original administrative complaint or claims that "are
reasonably related to those that were filed with the agency." Deravin v. Kerik, 335 F.3d 195, 200
(2d Cir. 2003) (quotation omitted).
Plaintiff neither checks the boxes to claim age or disability discrimination nor alleges any
facts relating to discrimination based on age or disability discrimination in her March 29, 2012
NYSDHR Complaint. (ECF No. 1at59). The EEOC construed plaintiff's NYSDHR Complaint
as arising solely under Title VII, not the ADA or the ADEA. Id. at 52. The only discrimination
plaintiff alleges in her NYSDHR Complaint is based on her sex, national origin, marital status
and domestic violence victim status; 11 the ADA and ADEA claims asserted in her complaint
cannot be construed as "reasonably related" to her agency charge. See, e.g., Edwards v. New

York State Unified Court Sys., No. 12 Civ. 46, 2012 WL 6101984, at *7 (S.D.N.Y. Nov. 20,
2012) ("allegations of disability discrimination are not, therefore, reasonably related to the race
discrimination ... claims [plaintiff] filed with the EEOC. Accordingly, to the extent Edwards
raises an ADA claim, such a claim is barred."); Rosero v. Supreme Sys., Inc., No. 11-CV-4062,
2012 WL 3542021, at *4 (E.D.N.Y. Apr. 24, 2012) (dismissing ADA claim where "[p]laintiff's
11

The Court notes that plaintiff's Title VII claim for race discrimination is also unexhausted
because plaintiff did not allege any discrimination based on race in her NYSDHR complaint, nor
would race discrimination be considered "reasonably related" to the claims she did raise: sex,
national origin and domestic violence.
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NYSDHR charge did not mention ... any[] physical or mental condition that would have placed
defendant or the agency on notice of plaintiffs claims under the ADA"). Therefore, because
plaintiff failed to exhaust her age and disability discrimination claims, defendants' motion to
dismiss plaintiffs ADA and ADEA claims is granted. Fed. R. Civ. P. 12(b)(6).
E. State Law Claims
Plaintiff raises a host of other claims in her complaint, all of which arise under New York
state law: breach of contract, fraud, breach of implied covenant of good faith and fair dealing,
intentional infliction of emotional distress, underpayment of wages, wrongful discharge, breach
of employment oral contract, and, implicitly, claims under the New York State Human Rights
Law ("NYHRL").

Defendants are correct that plaintiffs NYHRL discrimination claims are

barred by the election of remedies doctrine and must be dismissed fot lack of subject matter
jurisdiction. Fed. R. Civ. P. 12(b)(l); York v. Ass'n of Bar of City of N.Y, 286 F.3d 122, 127 (2d
Cir. 2002); Ganthier v. N. Shore-Long Island Jewish Health Sys., Inc., 345 F.Supp.2d 271, 282
(E.D.N.Y. 2004) (citing N.Y. Exec. Law § 298) (After the State Division of Human Rights
renders a decision on a charge of discrimination, a plaintiffs only recourse is to "appeal the
decision to the Supreme Court of the State of New York.").
Because defendants' motion to dismiss plaintiffs federal claims is granted by the Court,
it declines to exercise supplemental jurisdiction over any state law claims. See 28 U.S.C. §
1367(c)(3) (district court "may decline to exercise supplemental jurisdiction" over related state
law claims if the court "has dismissed all claims over which it has original jurisdiction"); United

Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) ("Certainly, if the federal claims are
dismissed before trial, even though not insubstantial in a jurisdictional sense, the state claims
should be dismissed as well."); Valencia v. Lee, 316 F.3d 299, 306 (2d Cir. 2003) (explaining

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that declining supplemental jurisdiction over state-law claims is appropriate where federal claims
have been dismissed at a relatively early stage). Accordingly, plaintiffs state law claims are
dismissed without prejudice.
F. Leave to Rep lead
Although plaintiff has not requested leave to amend her complaint, the Court considers
whether plaintiff should be given an opportunity to amend her employment discrimination
claims. Under Rule l S(a) of the Federal Rules of Civil Procedure, the "court should freely give
leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). However, even under this
liberal standard, any attempt to amend the pleading in this case would be futile as plaintiffs
federal claims are time-barred and/or unexhausted.

These defects cannot be remedied by

amendment. Where any amendment to the complaint would clearly be futile, it is appropriate to
dismiss without leave to replead. See, e.g., Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)
("The problem with [plaintiffs] causes of action is substantive; better pleading will not cure it.
Repleading would thus be futile. Such a futile request to replead should be denied.").

CONCLUSION
For the reasons set forth herein, plaintiffs motions are denied, except for plaintiffs
motion to seal the medical records which is granted. The Clerk of Court shall seal those records
attached as "Exhibit L," (ECF No. 44 at 54-83), for parties' eyes only. Defendants' motion to
dismiss plaintiffs claims under federal law is granted in its entirety. The Court declines to

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exercise supplemental jurisdiction over any state law claims. Any state law claim is dismissed
without prejudice, except plaintiff's discrimination claims under the NYHRL are dismissed for
lack of subject matter jurisdiction as they are barred by the election of remedies. Accordingly,
the Clerk of the Court shall enter judgment and close the case.
SO ORDERED.

/S/ Judge Lois Bloom

WIS'BLOOM.

<

United States Magistrate Judge
Dated: April 28, 2014
Brooklyn, New York

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