Davis v. Fed Ex Ground Package System
MEMORANDUM AND ORDER granting 29 Motion to Dismiss. For the reason stated in the attached Memorandum and Order, defendants motion to dismiss the Complaint is GRANTED. The Complaint is dismissed with prejudice because the court finds that le ave to amend would be futile. Ruotolo v. City of N. Y., 514 F.3d 184, 191 (2d Cir. 2008). The court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Memorandum and Order would not be taken in good faith and, therefo re, in forma pauperis status is denied for purposes of an appeal. Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 8 L.Ed.2d 21 (1962). The Clerk of Court is respectfully directed to enter judgment in favor of defendant and close this case. The Clerk of Court is also respectfully directed to serve a copy of the judgment, an appeals packet, and this Memorandum and Order on plaintiff, and note service on the docket. Ordered by Judge Kiyo A. Matsumoto on 3/31/2017. (Fletcher, Camille)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
FED EX GROUND PACKAGE SYSTEM,
KIYO A. MATSUMOTO, United States District Judge:
Pro se plaintiff Phyllis Davis (“plaintiff”) commenced
(“defendant” or “FedEx”) alleging discrimination in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to
Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§
Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§
Presently before the court is defendant’s Motion to
Dismiss the Complaint (“Motion”) pursuant to Fed. R. Civ. P.
(ECF No. 29.)
For the reasons stated herein the Motion
Plaintiff Phyllis Davis, is a 59-year-old woman who
worked part-time for FedEx from April 25, 2000 to June 2, 2014, as
an “Administrative Associate.”
at 5, 9, 16, 17, 33.) 1
(Complaint (“Compl.”), ECF No. 1,
On May 29, 2014, defendant told plaintiff
not to return to work after plaintiff brought a butcher knife to
(Compl., ECF No. 1 at 33.)
A New York Separation Notice
dated June 2, 2014, states that plaintiff’s employment with FedEx
Ground ended on June 2, 2014, and that her coverage under and
participation in all employee benefit plans and programs ended on
June 3, 2014.
(Affirmation in Opposition to Motion to Dismiss
(“Pl. Opp.”), New York Separation Notice (“Separation Notice”),
ECF No. 29-1 at 15-16.)
After her termination from FedEx, plaintiff applied for
Decision, State of New York, Unemployment Insurance Appeal Board
(“Unemployment Benefits Decision”) attached to the Complaint, ECF
No. 1 at 31-38.)
Plaintiff testified at a hearing before an
Administrative Law Judge (“ALJ”) in an appeal to reinstate her
unemployment insurance benefits. (Id. at 31.) On October 1, 2014,
the ALJ found that the credible evidence established that FedEx
terminated plaintiff’s employment because she violated FedEx’s
policy by bringing a weapon, a butcher knife, into work on May 29,
(Id. at 35.)
The ALJ found credible plaintiff’s testimony
Citations to Complaint refer to the page numbers assigned by the Official
Court Electronic Filing System, ECF.
unemployment insurance benefits when she reported that she lost
her job due to lack of work.
(Id. at 35.)
The ALJ found that
plaintiff later informed the Department of Labor of the true
circumstances of her separation, specifically that her employment
(Id. at 37.)
On April 2, 2015, plaintiff filed charges with the U.S.
(Compl., ECF No. 1 at 22.)
On April 10, 2015,
the EEOC issued plaintiff a “Dismissal and Notice of Rights”
stating that all of the harm plaintiff alleged occurred more than
300 days before the April 2, 2015 filing date and, therefore, the
Commission was unable to investigate the charges.
also informed plaintiff that if she wished to pursue the charge on
her own, she could file a lawsuit in federal court within ninety
days of receipt of that letter.
On July 8, 2015, plaintiff filed the Complaint in this
(Compl., ECF No. 1.)
On March 26, 2016, defendant filed
the fully briefed motion to dismiss.
(ECF Nos. 29, 29-1 and 29-
Defendant argues that the Complaint must be dismissed because
plaintiff failed to properly exhaust her administrative remedies
by filing charges with the EEOC within 300 days of the last alleged
(Memorandum of Law in Support of Motion to
Dismiss (“Def. Br.”), ECF No. 29 at 3-4.))
For the reasons set forth below, the court finds that,
although plaintiff filed charges with the EEOC in a timely manner,
the Complaint fails to state a claim for which relief may be
Therefore, defendant’s motion to dismiss is granted and
the Complaint is dismissed.
Standard of Review
When considering a motion to dismiss pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure, a court must
accept all well-pleaded factual allegations in the complaint as
true and draw all reasonable inferences in favor of the plaintiff.
See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-57, 127 S.
Ct. 1955, 167 L.Ed.2d 929 (2007).
The court’s function on a motion
to dismiss is “not to weigh the evidence that might be presented
at a trial but merely to determine whether the complaint itself is
Goldman v. Belden, 754 F.2d 1059, 1067 (2d
“factual allegations sufficient to raise a right to relief above
the speculative level.”
ATSI Commc’ns Inc. v. The Shaar Fund,
Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (internal quotation omitted).
The plaintiff must allege enough facts to “state a claim to relief
that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) (quoting
Twombly, 550 U.S. at 570, 127 S. Ct. 1955).
“When a plaintiff is
pro se, the Court must ‘construe [the] complaint liberally and
Best v. City of N. Y., No. 12 CIV. 7874 (RJS) (SN),
2014 WL 163899, at *6 (S.D.N.Y. Jan. 15, 2014) (quoting Chavis v.
Chappius, 618 F.3d 162, 170 (2d Cir. 2010)); see Haines v. Kerner,
404 U.S. 519, 520–21 (1972).
Even with a pro se plaintiff,
however, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.”
Iqbal, 556 U.S. at 678, 129 S. Ct. 1937 (quoting Twombly, 550 U.S.
at 555, 127 S. Ct. 1955).
Therefore, although the court is
complaint supports, it “cannot invent factual allegations that
[the plaintiff] has not pled.”
Chavis, 618 F.3d at 170.
“In reviewing a complaint, a court is not limited to the
four corners of the complaint;” rather, “a court may also consider
‘documents attached to the complaint as an exhibit or incorporated
in it by reference, . . . matters of which judicial notice may be
taken, or . . . documents either in plaintiffs’ possession or of
which plaintiffs had knowledge and relied on in bringing suit.”
Villanueva v. City of N.Y., No. 08 CIV. 8793 (LBS), 2010 WL
1654162, at *5 (S.D.N.Y. Apr. 14, 2010) (citing Brass v. Am. Film
Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); see Taylor v. Vt.
Dep’t of Educ., 313 F.3d 768, 776 (2d Cir. 2002).
The court may
review such documents even when the complaint does not explicitly
refer to them.
Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d
42, 47 (2d Cir. 1991).
As such, the court considers the Decision
from the Unemployment Insurance Appeal Board and the Separation
See Villanueva, 2010 WL 1654162, at *5
relied on in bringing suit).
Defendant moves to dismiss the Complaint on the grounds
remedies when she failed to file charges with the EEOC within 300
days of her termination, the last alleged unlawful conduct.
Br., ECF No. 29 at 4.)
Plaintiff argues that FedEx has not
established when she received the Separation Notice, and that the
statute of limitations does not begin to run until she receives
notice of termination.
(Pl. Opp., ECF No. 29-1 at ¶ 4.)
argues, in the alternative, that even if her EEOC filing was
untimely, her circumstances warrant equitable tolling of the 300day statute of limitations.
(Id. at ¶ 5.)
The court finds that
plaintiff’s EEOC filing was timely, but the Complaint fails to
state a claim for which relief may be granted. Accordingly, the
defendant’s motion to dismiss is granted.
A. Plaintiff’s Filing With the EEOC Was Timely
“A Title VII employment discrimination claim must be
filed with the Equal Employment Opportunity Commission (“EEOC”) or
New York State Division of Human Rights (“SDHR”) within 300 days
of the alleged unlawful practice.”
Cetina v. Longworth, 583 F.
App’x 1, 2 (2d Cir. 2014) (citing 42 U.S.C. § 2000e); Ford v.
Bernard Fineson Dev. Ctr., 81 F.3d 304, 307 (2d Cir. 1996) (same).
“[T]he time for filing a claim with the EEOC starts running on the
termination, not upon [her] discharge.”
Riddle v. Citigroup, 449
F. App’x 66, 69 (2d Cir. 2011) (citing Flaherty v. Metromail Corp.,
235 F.3d 133, 137 (2d Cir. 2000)).
“There is a  presumption
that a mailed document is received three days after its mailing.”
Tiberio v. Allergy Asthma Immunology of Rochester, 664 F.3d 35, 37
(2d Cir. 2011) (citing Sherlock v. Montefiore Med. Ctr., 84 F.3d
522, 525–26 (2d Cir. 1996); see also Fed. R. Civ. P. 6(d). 2
presumption may be rebutted, “however, ‘if a claimant presents
sworn testimony or other admissible evidence from which it could
reasonably be inferred either that the notice was mailed later
The cases cite Fed. R. Civ. P. 6(e) but Fed. R. Civ. P. 6 was amended during
the 2007 restyling of the Rules, and subsection (e) became subsection (d). The
presumption that a document served by mail is received three days after its
mailing, was unchanged, however.
Compare Fed. R. Civ. P. 6(e) with current
Fed. R. Civ. P. 6(d); see also Fed. R. Civ. P. 6, Committee Notes on Rules-2007
Amendment (discussing the “general restyling of the Civil Rules”).
than its typewritten date or that it took longer than three days
to reach her by mail.’”
Tiberio, 664 F.3d at 37 (quoting Sherlock,
84 F.3d at 526).
Here, the defendant’s Separation Notice, which plaintiff
attached to her opposition, is dated June 2, 2014, and states that
plaintiff’s employment at FedEx was terminated, effective June 2,
The notice indicates that the “employee” was “unavailable
to sign notice.” (Separation Notice, ECF No. 29-1 at 15-16.)
Plaintiff argues in her opposition that she does not remember the
exact date on which she received the termination notice, but she
believes that she received the notice after June 2, 2014.
Opp., ECF No. 29-1 at ¶¶ 30, 51.)
In the Complaint, plaintiff
states that she worked at FedEx Ground from “April 25, 2000 until
May 29, 2014.”
(Compl., ECF No. 1 at 5.)
A plain reading of the
Complaint indicates that plaintiff believed that her employment
with FedEx ended on May 29, 2014, when she was sent home after she
was found with a knife at work.
The court draws all
reasonable inferences in plaintiff’s favor, and relies on the date
listed on the Separation Notice and in the Unemployment Benefits
Decision, attached to the Complaint and to plaintiff’s opposition
(Separation Notice, ECF No 29-1 at 15; Compl., ECF No. 1 at 35.)
Plaintiff argues that she received the Separation Notice
a few days after June 2, 2014, via delivery by FedEx. (Pl. Opp.,
ECF No. 29-1 at ¶ 52).
Arguments in opposition to a motion to
dismiss however, are insufficient to cure a deficient pleading.
See Goodman v. Port Auth. of N.Y. and N.J., 850 F. Supp. 2d 363,
opposition to a motion to dismiss cannot be used to cure a
Nonetheless, for the sake of judicial
economy and because plaintiff is pro se, the court considers
plaintiff’s argument. Federal Rules of Civil Procedure 6(d) states
that when “a party may or must act within a specified time after
being served” by mail, “3 days are added after the period would
otherwise expire.” (Id.)
The court recognizes that the Federal
Rules of Civil Procedure apply to civil actions in federal district
Yet, the court finds useful and appropriate the
timeliness of the charges plaintiff filed with the EEOC.
plaintiff was terminated on June 2, 2014, the 300-day statute of
limitations expired on Sunday, March 29, 2014.
Thus, per Fed. R.
Civ. P. (6)(a)(1)(C), because the last day of the statutory period
was a Sunday, the 300-day period ended on Monday, March 30, 2015,
“the next day that [was] not a Saturday, Sunday, or legal holiday.”
Adding three days to the end of the proper statutory period,
March 30, 2015, pursuant to Fed R. Civ. P. (6)(d), the last day
for plaintiff to file charges with the EEOC was April 2, 2015.
Because it is undisputed that plaintiff filed her charges with the
EEOC on April 2, 2015, her claim is timely. 3
(Compl., ECF No. 1
B. Plaintiff Has Not Stated a Plausible Claim Under the
Although, plaintiff’s filing with the EEOC was timely,
the court finds that the Complaint does not state a plausible ADEA
“The ADEA prohibits employers from refusing to hire,
discharging, or otherwise discriminating against an employee with
employment because of age.”
Hrisinko v. N.Y.C. Dep’t of Educ.,
623(a)(1)). “The ADEA prohibits discrimination in employment on
the basis of age against persons aged 40 or older.”
Genovese/Eckerd Corp., 479 F.3d 193, 194 (2d Cir. 2007) (citing 29
discrimination claim under the ADEA, the plaintiff must allege
facts supporting an inference that there was an adverse employment
action taken against her by her employer, and that her age was the
“but-for” cause of the adverse action. See Vega v. Hempstead Union
Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015).
Because the court finds that plaintiff’s filing of charges with the EEOC was
timely, the court does not address the parties’ equitable tolling arguments.
inference’ of the requisite discriminatory causality.”
Leviton Mfg. Co., Inc., 661 F. App’x 29, 32 (2d Cir. 2016) (citing
Littlejohn v. City of N. Y., 795 F.3d 297, 310–11 (2d Cir. 2015)).
“A plaintiff must supply sufficient factual material, and not just
legal conclusions, to push the misconduct alleged in the pleading
beyond the realm of the ‘conceivable’ to the ‘plausible.’” Marcus,
661 F. App’x at 32 (citing Vega, 801 F.3d at 84).
Plaintiff alleges that she was 59 years old in 2015.
(Compl., ECF No. 1 at 17.)
Therefore, plaintiff has plausibly
stated that she was in a protected age group under the ADEA at the
time of the alleged discrimination.
See 29 U.S.C. § 631(a).
Plaintiff alleges, among other things, that she was
terminated, denied promotion and experienced unequal terms and
conditions of her employment.
(Compl., ECF No. 1 at 4, 15.)
promote her and the unequal terms and conditions of her employment
date from 2013 or earlier.
(Id. at 10, 12-13, 15.)
these claims are time barred, as they fall outside the 300-day
Thus, plaintiff has not sufficiently alleged an
adverse employment action based on failure to promote and unequal
terms and conditions of employment.
Plaintiff also alleges that because of her age, she was
terminated, which is an adverse employment action.
See Jones v.
Target Corp., No. 15-CV-4672 (MKB), 2016 WL 50779, at *4 (E.D.N.Y.
Jan. 4, 2016) (“[i]t shall be unlawful for an employer (1) to fail
or refuse to hire or to discharge any individual or otherwise
compensation, . . . because of such individual’s age”) (citing 29
U.S.C. § 623(a)).
Plaintiff has not alleged facts giving rise to
a plausible inference that her age is the “but for” cause of her
Plaintiff alleges that she was not promoted, but
younger women, with long hair and nails and who wore high heels,
were promoted, even though she had been employed by FedEx for a
much longer period.
(See Compl., ECF No. 1 at 9-10.)
does not provide specifics as to ages and identities of the women
who were promoted.
(See generally, Compl., ECF No. 1).
most of plaintiff’s allegations involve events in 2000, 2005, and
2008, well outside the 300-day statutory period.
(Id. at 10, 12-
Therefore, these allegations fail to state a claim
because they are time barred.
Moreover, plaintiff alleges that she was written up on
three occasions for workplace violence.
(Id. at 11.)
also alleges that a colleague with whom she had worked with for
fourteen years, Amy Mendez, reported to a manager that plaintiff
had threatened her; plaintiff alleges that she was called into the
supervisor’s office because of the way she spoke to Ms. Mendez.
(Id. at 17.)
Finally, plaintiff attaches to her Complaint an
Unemployment Insurance Appeal Board decision dated October 1,
2014, noting, inter alia, that during the week prior to May 29,
2014, a co-worker had commented on a three-inch butcher knife that
claimant kept in her drawer at work to use for food preparation at
The ALJ also noted that plaintiff “was aware that the
weapons to work, and that her employment could be terminated for
violation of said policy.”
(Id. at 33.)
Plaintiff concedes in
her Affirmation in Opposition to Motion to Dismiss that she was
terminated because she brought a knife to work, in violation of
FedEx policy, but adds that the ALJ found her testimony credible
that she mistakenly forgot to take the knife out of her bag.
Opp., ECF No. 29-1 at ¶ 42).
Accepting plaintiff’s allegations as
true, plaintiff has not sufficiently alleged that her age is the
but-for cause of her termination from FedEx.
allegations state plausible facts to establish an inference that
the employer had a non-discriminatory, non-pretextual reason to
FedEx’s workplace policy prohibiting weapons at work, when she
brought a knife to work on May 29, 2014.
has not stated a plausible ADEA discrimination claim, that but for
her age, she would not have been terminated from her job.
Turner v. Concourse Vill., Inc., No. 12 CIV. 8739 (RWS), 2016 WL
plaintiff’s ADEA claim because “the far more reasonable inference
terminated due to the fact that the injury made him unable to
perform his job, and Plaintiff failed to provide any indication
about his ability to return over the course of seven months.”);
Jones, 2016 WL 50779, at *4 (E.D.N.Y. Jan. 4, 2016) (dismissing
plaintiff’s ADEA claim because the vague allegations did not
sufficiently allege that her age was the but-for cause of her
Bohnet v. Valley Stream Union Free Sch. Dist. 13,
30 F. Supp. 3d 174, 180 (E.D.N.Y. 2014) (holding that plaintiff
failed to allege sufficient facts to support conclusion that, but
for her age, she would have been hired for a tenure track position,
and noting that complaint failed to allege any details about the
identity or ages of those hired instead of plaintiff).
C. Plaintiff Has Not Stated a Plausible Claim Under the ADA
or Title VII
Even though the court finds that the charges plaintiff
filed with the EEOC were timely, the court finds that plaintiff
has not alleged plausible Title VII or ADA claims.
(Compl., ECF No. 1 at 22.)
in the Complaint checked boxes for discrimination under Title VII
and under the ADA.
(Id. at 1.)
Although the court liberally
construes the Complaint to include the Title VII and the ADA
claims, these claims fail not only because plaintiff failed to
allege sufficient facts supporting these claims, but also because
plaintiff failed to exhaust these claims with the EEOC.
Under both Title VII and the ADA, a claimant may bring
suit in federal court only if she has filed a timely complaint
with the EEOC and obtained a right-to-sue letter.
See 42 U.S.C.
§§ 2000e–5(e) and (f); 29 U.S.C. § 626(d); 42 U.S.C. § 12117(a)
(adopting exhaustion requirement of Title VII codified at 42 U.S.C.
§ 2000e–5 for the ADA); Legnani v. Alitalia Linee Aeree Italiane,
S.P.A, 274 F.3d 683, 686 (2d Cir. 2001); Vlad-Berindan v. LifeWorx,
Inc., No. 13 CV 1562 LB, 2014 WL 1682059, at *9 (E.D.N.Y. Apr. 28,
2014), aff’d sub nom. Vlad-Berindan v. Life Worx Inc., 599 F. App’x
415 (2d Cir. 2015).
Exhaustion of administrative remedies through
the EEOC is “an essential element” of the Title VII and ADA
statutory schemes and, as such, a precondition to bringing such
claims in federal court.
Francis v. City of N. Y., 235 F.3d 763,
768 (2d Cir. 2000); see also Vlad-Berindan, 2014 WL 1682059, at *9
(citing Butts v. N.Y. Dep’t of Hous. Pres. & Dev., 990 F.2d 1397,
1401 (2d Cir. 1993), superseded by statute on other grounds by
Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir. 1998)).
“[T]he Second Circuit has noted [that] 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.’”
Vlad-Berindan, 2014 WL 1682059, at *9 (quoting Butts, 990 F.2d at
Here, consistent with the charges plaintiff filed with
the EEOC, the EEOC construed plaintiff’s charges as arising under
the ADEA, not Title VII or the ADA.
(Compl., ECF No. 1 at 22.)
The Complaint makes no allegations sounding of discrimination
Plaintiff makes two references to having a disability,
but makes no other allegations of being treated differently because
she has a disability.
(See id. at 10, 18.)
Nor does plaintiff
allege specific facts about the nature of her condition to support
an inference that plaintiff has a disability as defined under the
Further, plaintiff did not check “failure to accommodate
[her] disability” as discriminatory conduct by FedEx about which
plaintiff’s Title VII claim and her ADA claim are dismissed for
failure to exhaust her administrative remedies, and because the
Complaint does not allege sufficient facts to state a plausible
claim under either statute.
See, e.g., Cruz v. N.Y. City Dep’t of
Educ., 376 F. App’x 82, 85 (2d Cir. 2010) (holding that plaintiff’s
disability claims were properly dismissed as unexhausted because
plaintiff failed to raise them before the EEOC) (citing McInerney
v. Rensselaer Polytechnic Inst., 505 F.3d 135, 138 (2d Cir. 2007));
Vlad-Berindan, 2014 WL 1682059, at *9 (dismissing ADA and ADEA
claims where the complaint alleged no facts supporting either claim
and because plaintiff failed to exhaust administrative remedies by
not alleging discrimination under the ADA and ADEA during the
For the foregoing reasons, defendant’s motion to dismiss
prejudice because the court finds that leave to amend would be
Ruotolo v. City of N. Y., 514 F.3d 184, 191 (2d Cir.
2008); Mercado v. Quantum Servicing Corp., No. 15–CV–1500, 2015 WL
1969028, at *5 (E.D.N.Y. Apr.29, 2015).
The court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
therefore, in forma pauperis status is denied for purposes of an
Coppedge v. United States, 369 U.S. 438, 444–45, 82 S.
Ct. 917, 8 L.Ed.2d 21 (1962).
The Clerk of Court is respectfully
directed to enter judgment in favor of defendant and close this
The Clerk of Court is also respectfully directed to serve
a copy of the judgment, an appeals packet, and this Memorandum and
Order on plaintiff, and note service on the docket.
March 31, 2017
Brooklyn, New York
Hon. Kiyo A. Matsumoto
United States District Judge
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