Manello v. Nationwide Mutual Insurance Company
OPINION & ORDER: SO ORDERED that deft's 10 motion seeking dismissal of plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is granted to the extent that plaintiff's (a) second, fourth, sixth, ninth , eleventh and thirteenth claims for relief are dismissed in their entirety with prejudice, (b) fifth and twelfth claims for relief are dismissed in their entirety with prejudice, except insofar as those claims allege that plaintiffs termination was retaliatory, and (c) first claim for relief is dismissed to the extent it is based upon acts occurring prior to January 7, 2008, as time-barred, and deft's motion is otherwise denied. The parties are directed to appear, with authority or with in dividuals with authority to settle this matter, in my courtroom located at 1010 Federal Plaza, Central Islip, New York, on September 27,2012 at 11:15 a.m. for an initial conference before me. Ordered by Judge Sandra J. Feuerstein on 9/4/2012. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
OPINION AND ORDER
NATIONWIDE MUTUAL INSURANCE
IN CLERK'S OFFICE
U S DISTRICT COURT E D NY
FEUERSTEIN, United States District Judge:
SEP 04 2012
LONG ISLAND OFFICE
On January 14,2011, plaintiff Mark Manello ("plaintiff') filed this action against
defendant Nationwide Mutual Insurance Company ("defendant") alleging employment
discrimination based upon sex and disability, and retaliation, in violation of Titles I and II of the
Americans with Disabilities Act ("ADA"), as amended, 42 U.S.C. §§ 12101, et seq.; Title VII of
the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e, et seq., and New York State
Executive Law ("NYSHRL") §§ 290, et seq. Defendant now moves pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure to dismiss: (I) the complaint as time-barred; (2) plaintiffs
second and third claims, alleging violations of the ADA, for failure to exhaust administrative
remedies; and (3) plaintiffs claim that defendant was required to inform him of a second job
posting for a technical clerk position for failure to state a claim for relief. For the reasons stated
herein, defendant's motion is granted in part and denied in part.
Factual Allegations 1
Plaintiff is a male who commenced employment with defendant as a "MD Master Claims
Representative" ("claims representative") on May 19, 1997. (Complaint [Compl.], ~ 5, 10).2
The written job description applicable to plaintiffs claims representative position included the
ability: (I) "to make physical inspections of accident scenes and property loss sites;" (2) "to
climb ladders, balance at various heights, stoop[,] bend and/or crawl to inspect vehicles and
structures;". and (3) "to work out-of-doors in all types of weather." (Compl., ~II).
On or about June 19, 2007, plaintiff injured his lower back during the course of his
12). On July 17, 2007, Dr. Kenneth S. Glass ("Dr. Glass"), an
orthopedist, diagnosed plaintiffs complaint as a lumbar sprain. (Compl.,
13). On August 8,
2007, Dr. Glass added radiculitis to the diagnosis and limited plaintiff's work activities to
exclude bending, stooping and climbing. (Compl., ~ 13). An MRI of plaintiff's lumbar spine,
performed on August 18, 2007, revealed a moderate to large left paracentral disc herniation at
L5-Sl impinging on the left Sl nerve route. (Compl.,
14). In reports dated August 14,2007,
September 6, 2007 and December 14,2007, Dr. Glass concluded that plaintiff's lower back
injury prevented him from performing his claims representative duties and from returning to
13, 15, 17).
The factual allegations are taken from the complaint and are assumed to be true for purposes of
this motion only. They do not constitute findings of fact by the Court.
The complaint omits paragraphs 7, 8, 9, and 16. All references to the paragraph numbers
correspond to the paragraph numbers in the complaint.
Plaintiff alleges that on August 23, 2007, defendant notified him that his absence from
work commencing on August 14, 2007 qualified him for protection under the Family Medical
Leave Act ("FMLA"). (Compl., 'If 24). By letters dated September 10, 2007 and December 7,
2007, defendant confirmed that due to plaintiff's absence beginning on August 22, 2007, he had
been certified to receive benefits under defendant's Short Term Disability Income ("STDI")
benefits program for a period of six (6) months based upon the diagnoses of a lumbar sprain and
herniated disc. (Compl., 'If 25). Plaintiff received STDI benefits without interruption for the
entire six (6) month period. (Compl., 'If 25).
Plaintiff alleges that by memorandum dated November 13, 2007, Scott Lange ("Lange"),
defendant's AHS case manager to plaintiff, advised him that he had exhausted his leave under
the FMLA and that "if he continued on short-term disability for six months without returning to
work, his employment might be terminated." (Compl., 'If 26).
On November 29, 2007, plaintiff, who had completed or was about to complete a juris
doctorate program and had interned in an attorney's office from November 2006 to August 2007,
posted an application for an open senior paralegal position with defendant's trial division office,
but was not offered the position. (Compl., 'If 33). According to plaintiff, the position was offered
to a female, Kelly O'Brien ("O'Brien"), "whose highest level of education completed was a
certification from New York Paralegal School," (Compl., 'If 33), and at the time his application
was rejected, "the majority of paralegals assigned to [defendant's] Trial Office were female,"
(Compl., 'If 33).
On December 4, 2007, plaintiff sent an e-mail to Alain Romulus ("Romulus"), from
defendant's human resources department, complaining that Suzie Snyder ("Snyder"), the nurse
manager assigned to his STDI benefits case, was retaliating against him "in response to his
disability" by: (1) "threaten[ing] to cut-off his [STDI] benefits if supporting medical information
was not received that day
* * * despite faxing [his] physician the necessary forms to be
completed less than 7 to I 0 days before they were due even though she had been repeatedly
advised that [his] physician required at least that long to complete and submit them[;]" and (2)
failing to mention during a telephone conversation with him that her supervisor was listening in
on the conversation. (Compl.,
On December 14, 2007, plaintiff sent another e-mail to Romulus "expressing his concern
over the manner in which his application for the Senior Paralegal position was considered and
rejected" because the reason for the rejection of his application, i.e., his lack of experience with
PIP matters, "was perplexing given that the job posting for the position did not mention the need
forth[ at] kind of experience." (Compl.,
On December 20, 2007, plaintiff sent a third e-mail to Romulus "voic[ing] his frustration
with the entire manner in which his [STDI benefits] claim and requests for accommodations had
been handled;" accusing defendant of retaliating against him for his requests for an
accommodation of his disability "by (I) applying a hypertechnical review of his qualifications as
set forth in his resume; (2) posting an inaccurate description for the Senior Paralegal position;
[and] (3) stonewalling his request for an accommodation by repeatedly requiring [him] to obtain
additional information from his doctor[;]" and requesting that defendant investigate his
complaints "and take necessary action to extend him a reasonable accommodation of his
disability." (Compl., ~ 37).
Barb DeShetler ("DeShetler"), a registered nurse with defendant, senf plaintiff an e-mail
dated December 27, 2007 reiterating what Romulus had previously told plaintiff, i.e., that
defendant would not offer any modifications to plaintiffs claims representative position until his
doctor released him to return to work and provided a detailed report regarding his restrictions.
(Compl., 11 37-38). Thereafter, defendant was provided notes from Dr. Glass, dated January 2,
2008 and January 14,2008, respectively, indicating that plaintiff could return to work but was
restricted to a sedentary "desk job" position and that such restriction was permanent. (Compl. 11
18, 19, 39).
On January 4, 2008, plaintiff applied for a technical clerk position in defendant's
Woodbury office, which had been posted by defendant on December 21, 2007 with a "target fill"
date of February 4, 2008. (Compl., 1 34). According to plaintiff, the job duties of a technical
clerk position were "largely ministerial; i.e., maintaining records, compiling and distributing
standard reports, assisting in answering phones, taking messages, etc." (Compl., 1 34).
Defendant cancelled the job posting on February 4, 2008 "due to change in business needs and
budgetary issues." (Compl., 1 34). However, according to plaintiff, "around the same time"
defendant initiated a second posting for a technical clerk position without notifying him that the
position was available or considering him for the position and that position "was subsequently
filled by someone other than plaintiff." (Compl., 1 34).
By letter dated January 22,2008, DeShetler advised plaintiff that "there [were] no vacant
Claims positions in the region for which [he] [was] qualified that would meet [his] modification
request of working in a sedentary position on a permanent basis." (Compl., 1 40).
On January 25,2008, defendant posted a job opening for plaintiffs claims representative
position. (Compl., 1 27).
By letter dated February 4, 2008, Kari Bruning ("Bruning"), senior analyst for defendant,
advised plaintiff that if he did not return to work by February 29, 2008, his employment would be
terminated "on the basis that he had been continuously disabled for 6 months." (Compl., ~ 28).
On February 29, 2008, defendant terminated plaintiff's employment. (Compl., ~ 29).
On or about November 3, 2008, plaintiff filed a charge of discrimination based on
disability and sex, and retaliation, against defendant with the United States Equal Employment
Opportunity Commission ("EEOC"), which then filed the charge with the New York State
Division of Human Rights ("NYSDHR"). (Compl.
41). The NYSDHR took no action with
respect to the charge, but the EEOC issued a right to sue letter on December 6, 201 0, after its
efforts at conciliation failed. (Compl.
On January 14,2011, plaintiff filed a complaint against defendant in this Court, alleging
that defendant: (I) violated Titles I and II of the ADA and the NYSHRL by failing to reasonably
accommodate his disability by (a) not permitting him to work a modified or sedentary assignment
in defendant's claims department (first claim for relief [ADA] and eighth claim for relief
[NYSHRL ]), (b) not hiring him for the senior paralegal position (second claim for relief [ADA]
and ninth claim for relief [NYSHRL]) or either of the technicill clerk positions (third claim for
relief [ADA] and tenth claim for relief [NYSHRL]), or (c) not allowing him the opportunity to
request and receive additional leave time beyond the accrued leave periods and leave periods
designated under the FMLA and STDI benefits program (fourth claim for relief [ADA] and
eleventh claim for relief [NYSHRL]); (2) violated Titles I and II of the ADA and the NYSHRL
by retaliating against him for requesting accommodations of his disability and for complaining of
disability-based discrimination (fifth claim for relief [ADA] and twelfth claim for relief
[NYSHRL]); and (6) violated Title VII and the NYSHRL by discriminating against him based
upon his gender by virtue of its failure to hire him for the senior paralegal position (sixth claim
for relief [Title VII] and thirteenth claim for relief [NYSHRL]) and for either of the two (2)
technical clerk positions (seventh claim for relief (Title VII] and fourteenth claim for relief
[NYSHRL ]). Plaintiff seeks, inter alia, compensatory and punitive damages in the total amount
of one hundred million five hundred dollars ($1 00,000,500.00); attorney's fees in the amount of
one million dollars ($1,000,000.00), plus costs and expenses of the action; an order permanently
enjoining defendant "from discriminating against [him] in any manner prohibited by Title I and
Title II of the ADA, and [NYSHRL];" and an order directing defendant (a) to hire him "into a
position identical to or substantially similar to the one he occupied prior to the termination of his
employment, with full salary, seniority, and benefits, retroactive to the constructive termination
of her [sic] employment" and (b) "to compensate, reimburse and make whole the plaintiff for the
entire benefits (he J would have received but for the discriminatory acts of defendant, including
but not limited to back pay, benefits, training, promotions, front pay and seniority * * * [and] for
all insurance, pension and retirement benefits [he J would have received but for the acts of
defendant complained of." (Compl., at 29-32).
Defendant waived service of process on AprilS, 2011 and now moves pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure to dismiss: (1) the complaint as time-barred; (2)
plaintiff's second and third claims for failure to exhaust administrative remedies; and (3)
plaintiff's claim that defendant was required to inform him of a second job posting for a technical
clerk position for failure to state a claim for relief.
Standard of Review
The standard of review on a motion made pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure is that a plaintiff plead sufficient facts "to state a claim for relief that is
plausible on its face." Bell Atlantic Com. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167
L.Ed.2d 929 (2007). The pleading of specific facts is not required; rather a complaint need only
give the defendant "fair notice of what the
* * * claim is and the grounds upon which it rests."
Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197,2200, 167 L.Ed.2d 1081 (2007). "A pleading
that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action
will not do."' Aschroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868
(2009)(quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). "Nor does a complaint suffice if it
tenders 'naked assertion[s]' devoid of'further factual enhancement.'" Id. (quoting Twombly.
550 U.S. at 557, 127 S.Ct. 1955). "Factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the allegations in the complaint are true
(even if doubtful in fact)." Twombly, 550 U.S. 544, 127 S.Ct. at 1959. The plausibility standard
requires "more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at
678, 129 S.Ct. 1937.
In deciding a motion pursuant to Rule 12(b)( 6), the Court must liberally construe the
claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences
in favor of the plaintiff. See McGarry v. Pallito, 687 F.3d 505,510 (2d Cir. 2012); Rescuecom
Com. v. Google Inc., 562 F.3d 123, 127 (2d Cir. 2009). The Court must limit itself to the facts
alleged in the complaint, which are accepted as true; to any documents attached to the complaint
as exhibits or incorporated by reference therein; to matters of which judicial notice may be taken;
or to documents upon the terms and effect of which the complaint "relies heavily" and which are,
thus, rendered "integral" to the complaint. Chambers v. Time Warner, Inc., 282 F. 3d 147, 15253 (2d Cir. 2002) (citing International Audiotext Network. Inc. v. American Tel. and Tel. Co., 62
F.3d 69, 72 (2d Cir. 1995)).
Since the EEOC charge is a public document filed in an administrative proceeding, and is
integral to plaintiffs Title VII and ADA claims, the charge is properly considered on this motion.
See Morris v. David Lerner Assocs., 680 F.Supp.2d 430,436 (E.D.N.Y. 2010)); Muhammad v.
New York Citv Transit Auth., 450 F.Supp.2d 198,204-05 (E.D.N.Y. 2006).
ADA and Title VII Claims
Timeliness of Administrative Charge
"As a prerequisite to filing suit under Title VII [and the ADA], a private plaintiff must
first file a timely charge with the EEOC." Chin v. Port Authoritv ofNew York & New Jersey,
685 F.3d 135, 146 (2d Cir. 2012); see Lewis v. Citv of Chicago, Ill., 130 S. Ct. 2191,2196-97,
176 L. Ed. 2d 967 (2010); National R.R. Passenger Com. v. Morgan, 536 U.S. 101, 122, 12 S.Ct.
2061, !53 L.Ed.2d 106 (2002). 42 U.S.C. § 2000e-5(e)(l) provides, in pertinent part, as follows:
"A charge under this section [Title VII] shall be filed within one hundred and
eighty days after the alleged unlawful employment practice occurred and notice of
the charge (including the date, place and circumstances of the alleged unlawful
employment practice) shall be served upon the person against whom such charge
is made within ten days thereafter, except that in a case of an unlawful
~m~loyment pract.ice with respect to which the person aggrieved has initially
mstltuted proceedmgs with a State or local agency with authority to grant or seek
relief from such practice or to institute criminal proceedings with respect thereto
upon receiving notice thereof, such charge shall be filed by or on behalf of the
person aggrieved within three hundred days after the alleged unlawful
employment practice occurred, or within thirty days after receiving notice that the
State or local agency has terminated the proceedings under the State or local law,
whichever is earlier, and a copy of such charge shall be filed by the Commission
with the State or local agency."
42 U.S.C. § 12117(a) provides, in pertinent part:
"The powers, remedies, and procedures set forth in section * * * 2000e-5 [Title
VII], * * * of this title shall be the powers, remedies, and procedures this
subchapter provides to the Commission, to the Attorney General, or to any person
alleging discrimination on the basis of disability in violation of any provision of
this chapter, or regulations promulgated under section 12116 of this title,
New York is a "deferral state," i.e., it has an agency with the authority to address and
remedy charges of discriminatory employment practices, Tewksburv v. Ottaway Newspapers,
192 F.3d 322, 325 (2d Cir. 1999), and, therefore, the longer three hundred (300)-day period is
applicable "where an employee initially files a grievance with that [agency]." Chin, 685 F.3d at
157 n. 11. Since the EEOC referred plaintiffs charge to the NYSDHR and, therefore, "the
charge could not be regarded as formally filed with the EEOC until after the NYSDHR
terminated its proceedings or sixty days had passed," Tewksbury, 192 F.3d at 326, 327; see 42
U.S.C. § 2000e-5(c), the charge is deemed to have been "initially" filed with the NYSDHR and,
thus, subject to the longer three hundred (300)-day period. Tewksbury, 192 F.3d at 326, 327.
Accordingly, in order to file claims for unlawful discrimination or retaliation under Title VII and
the ADA, plaintiff was required to file an administrative charge of discrimination or retaliation
within three hundred (300) days of the alleged discriminatory or retaliatory acts. See Ledbetter v.
Goodyear Tire & Rubber Co .. 550 U.S. 618,127 S.Ct. 2162,2167, 167 L.Ed.2d 982 (2007),
overturned in Part Qv Pub. L. No. I I 1-2, 123 Stat. 5 (amending 42 U.S.C. § 2000e-5(e) with
respect to claims of discriminatory compensation); McPherson v. New York City Department of
Education, 457 F.3d 21 I, 213 (2d Cir. 2006).
The EEOC charging period is triggered when a "discrete discriminatory [or retaliatoryJ
act occurred," Morgan, 536 U.S. at I 13, 12 S.Ct. 2061, and "[t]he timeliness of a discrimination
[or retaliation] claim is to be measured from the date the claimant had notice of the allegedly
discriminatory [or retaliatory] action." VanZant v. KLM Royal Dutch Airlines, 80 F.3d 708,
713 (2d Cir. 1996); see also Singh v. Wells, 445 Fed. Appx. 373, 376-77 (2d Cir. Oct. 20,201 I);
Morse v. University of Vermont, 973 F.2d 122, 125 (2d Cir. 1992).
Although "under the continuing violation exception to the Title VII [and ADA]
limitations period, if a Title VII [or ADA] plaintiff files an EEOC charge that is timely as to any
incident of discrimination in furtherance of an ongoing policy of discrimination, all claims of acts
of discrimination under that policy will be timely even if they would be untimely standing
alone," Chin, 685 F.3d at 155-56 (alteration, quotations and citations omitted), '"discrete acts' of
* * do not implicate the continuing-violation doctrine."
Id. at !56. "[D]iscrete
discriminatory acts are not actionable if time barred, even when they are related to acts alleged in
timely filed charges." Morgan, 536 U.S. at I 13, 12 S. Ct. 2061. "Each discrete discriminatory
act starts a new clock for filing charges alleging that act." Id.
Discrete acts of discrimination or retaliation include, inter alia, termination and a refusal
to hire. See,~ Morgan, 536 U.S. at I 14, 12 S. Ct. 2061; Chin, 685 F.3d at !57; McGullam v.
Cedar Graphics. Inc., 609 F.3d 70, 75 (2d Cir. 2010). Such discrete acts "which fall outside the
limitations period, cannot be brought within it, even when undertaken pursuant to a general
policy that results in other discrete acts occurring within the limitations period." Chin, 685 F.3d
at 157. "[A ]n allegation of an ongoing discriminatory policy does not extend the statute of
limitations where the individual effects of the policy that give rise to the claim are merely
discrete acts." Id.
Plaintiff alleges that he filed his charge of discrimination with the EEOC on November 3
2008. Thus, any claim based upon discrete acts of discrimination or retaliation occurring prior to
January 7, 2008 are time barred, including: (a) the ADA and Title VII claims alleging
discrimination based upon the failure to hire him for the senior paralegal position' (second and
sixth claims for relief), (b) the ADA claim alleging a failure to accommodate by virtue of not
providing plaintiff with the opportunity to request and receive additional leave (fourth claim for
relief), since plaintiff was notified on November 13, 2007 that his FMLA leave had been
exhausted, (c) the ADA claim alleging retaliation based upon allegations that defendant "(I)
Although defendant contends that there is no allegation in the complaint indicating that he
knew prior to January 8, 2011 that a female had been hired to the senior paralegal position, (Plf.
Mem., at 18), it is clear from the face of the complaint that plaintiff knew no later than December
14,2007, when he sent an e-mail to Romulus, that he had not been hired from the senior
paralegal position. (Compl., ~ 36). Moreover, plaintiff alleges that atthe time his application for
the senior paralegal position was rejected, which occurred on or prior to December 14, 2007, "the
majority of paralegals assigned to [defendant's] Trial Office wc::re female." (Compl., ~ 33).
Accordingly, plaintiff had enough knowledge of"the critical facts of injury and causation,"
Singh, 445 Fed. Appx. at 377, for both his Title VII and ADA causes of action (second and
seventh claims for relief) to have accrued on the date that he learned that his application for the
senior paralegal position had been rejected, sometime on or prior to December 14,2007. See
Miller v. International Telephone and Telegraph Com., 755 F.2d 20, 24 (2d Cir. 1985) (holding
that discrimination claims accrue "upon the employer's commission of the discriminatory act and
are not tolled or delayed pending the employee's realization that the conduct was discriminatory"
absent extraordinary circumstances justifYing equitable tolling).
appl[ied) a hypertechnical review of his qualifications [for the senior paralegal position); (2)
post[ed) an inaccurate description for the Senior Paralegal position; (3) stonewall[ed) his
requests for an accommodation by repeatedly requiring plaintiff to obtain additional information
from his doctor* * *;[and) (4) fail[ed) to provide a substantive response to plaintiffs email of
December 20, 2007," (Compl., ~ 71), (fifth claim for relief); and (d) any ADA claim for failure to
accommodate alleging discrete acts occurring prior to January 7, 2008 (first claim for relief).
However, contrary to defendant's contention, the November 13, 2007 memorandum from
Lange, advising plaintiff that his employment "might" be terminated if he continued on shortterm disability for six months without returning to work, (Compl.,
26), did not start the
limitations period running with respect to plaintiffs actual termination. Plaintiff was not notified
that his employment was terminated until February 29, 2008 and, thus, his EEOC charge was
timely filed with respect to that discrete act of defendant.
Plaintiffs EEOC charge was also at least arguably timely with respect to: (I) his ADA
claim alleging a failure to accommodate his disability by permitting him to work a sedentary
assignment, since he was not notified until January 22, 2008 that there was no such
accommodation available to him; and (2) his claims based upon the failure to hire him to either
of the technical clerk positions, since plaintiff may not have been notified of the refusal to hire
him for those position until February 8, 2008, when the first position was relinquished, or
The limitations period for filing an administrative charge is not jurisdictional and, like a
statute of limitations, is subject to waiver, estoppel and equitable tolling. Zipes v. Trans World
Airlines, Inc., 455 U.S. 385, 393, 102 S. Ct. 1127,71 L. Ed. 2d 234 (1982); Zerilli-Edelglass v.
New York City Transit Authority. 333 F.3d 74, 80 (2d Cir. 2003). "[E]quitable tolling is only
appropriate in rare and exceptional circumstances
* * * in which a party is prevented in some
extraordinary way from exercising his rights." Zerilli-Edelglass, 333 F.3d at 80 (alterations,
quotations and citations omitted). "To merit equitable relief, a plaintiff must have acted with
reasonable diligence during the time period she seeks to have tolled." Paneccasio v. Unisource
Worldwide. Inc., 532 F.3d 101, 112 (2d Cir. 2008) (quotations and citation omitted). Based upon
the allegations in the complaint, equitable tolling of the limitations period is not warranted in this
case. Accordingly, the branch of defendant's motion seeking dismissal of plaintiffs complaint
as time barred is granted to the extent that plaintiffs second, fourth and sixth claims for relief are
dismissed in their entirety; plaintiffs fifth claim for reliefis dismissed in its entirety except to the
extent that it is based upon plaintiffs termination; and plaintiffs first claim for relief is
dismissed to the extent that it is based upon discrete acts of discrimination occurring prior to
January 7, 2008, for plaintiffs failure to timely file an administrative charge, and that branch of
defendant's motion is otherwise denied.
Exhaustion of Administrative Remedies
Defendant contends that plaintiff failed to exhaust his administrative remedies with
respect to his second and third claims alleging that defendant failed to accommodate his
disability, in violation of the ADA, by failing to hire him for the senior paralegal position or
either of the two (2) technical clerk positions because he did not specifically raise those claims in
his EEOC charge.
In his EEOC charge, plaintiff alleged, inter alia, that he was denied the senior paralegal,
and two (2) clerical positions, "because [he] was told that [he] was not qualified [and] [t]hat the
occupants ofth[o]se positions were all female, and that [he] was denied them made [him] believe
that [he] was not hired because of[his] gender." In addition, plaintiff alleged:
"In June 2007, while working as a claims adjuster, I was injured on the job. Per
my doctor's instructions, I took a six month leave of absence. Per the FMLA,
[defendant] permitted me 3 months, and told me they may give me more time than
that. After the three months had elapsed, [defendant] warned me that I would be
terminated ifl couldn't to [sic] return to work after six months from the date my
leave began. During the period of leave, I was in communication with
[defendant], relaying notes to them from my physician that released me to work,
provided that I was accommodated with a sedentary position. [Defendant]
continued to ask me for further documentation, which I provided.
I felt as though [defendant] was discriminating against me in not wanting to grant
me an accommodation, and the manner in which this communication was
conducted, which was harassing, and about which I made a complaint to Human
resources. Following this complaint, I was retaliated again [sic] in further
harassment. After six months of leave, I was terminated.
I believe that I have been discriminated against because of my disability, in that
[defendant J failed to accommodate me, and terminated me for taking what they
deemed excessive leave, as well as for making a complaint."
(EEOC Charge, Def. Mem., Ex. A).
Both Title VII and Title I of the ADA require a plaintiff to exhaust all available
administrative remedies prior to commencing an employment discrimination action in federal
court. See Hoffman v. Williamsville Sch. Dist., 443 Fed. Appx. 647,649 (2d Cir. Oct. 31, 2011)
("As with Title VII claims, plaintiffs asserting ADA claims must exhaust all available
administrative remedies."); Williams v. New York City Housing Authoritv, 458 F.3d 67, 70 (2d
Cir. 2006) ("Exhaustion is ordinarily 'an essential element' of a Title VII claim."); Deravin v.
Kerik, 335 F.3d 195, 200 (2d Cir. 2003) ("As a precondition to filing a Title VII claim in federal
court, a plaintiff must first pursue available administrative remedies and file a timely complaint
with the EEOC."); see also Curto v. Edmundson, 392 F.3d 502, 503 (2d Cir. 2004) (affirming
dismissal of the plaintiff's ADA claim because there was no evidence in the record that the
plaintiff had exhausted administrative remedies prior to filing the ADA claim in federal court).
"The purpose of th[e] [administrative] exhaustion requirement is 'to give the administrative
agency the opportunity to investigate, mediate, and take remedial action."' Brown v. Coach
Stores, Inc., 163 F.3d 706,712 (2d Cir. 1998) (quoting Stewart v. U.S. I.N.S., 762 F.2d 193, 198
(2d Cir. 1985)).
Claims that were not asserted in an EEOC charge may be pursued in a federal action only
if they are "reasonably related" to those that were filed with the agency. Ximines v. George
Wingate High Sch., 516 F.3d 156, 158 (2d Cir. 2008) (per curiam); Williams, 458 F.3d at 70;
Deravin, 335 F.3d at 200. There are three (3) types of"reasonably related" claims: (I) claims
that "fall within the scope of the EEOC investigation which can reasonably be expected to grow
out of the charge of discrimination;" (2) claims that allege retaliation for filing an EEOC charge;
and (3) claims that allege "further incidents of discrimination carried out in [precisely] the same
manner alleged in the EEOC charge." Terrv v. Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003)
(quoting Butts v. Citv ofNew York Dep't ofHous. Pres. and Dev., 990 F.2d 1397, 1402-03 (2d
Cir. 1993 ), superseded ]2y statute on other grounds as stated in Hawkins v. 1115 Legal Serv.
Care, 163 F.3d 684 (2d Cir. 1998)); see also Williams, 458 F.3d at 70,70 n.l. In determining
whether claims "fall within the scope of the EEOC investigation," the focus should be on the
factual allegations contained in the EEOC charge itself. Deravin, 335 F.3d at 201; see also
Williams, 458 F.3d at 70 (accord). "The central question is whether the complaint filed with the
EEOC gave that agency 'adequate notice to investigate discrimination on both bases."'
Williams, 458 F.3d at 70 (citing Deravin, 335 F.3d at 202).
Since exhaustion is an affirmative defense, see Belgrave v. Pena, 254 F.3d 384, 386 (2d
Cir. 2001), the defendant bears the burden of establishing the plaintiff's failure to timely exhaust
his administrative remedies. See Khadaroo v. New York Presbyterian Hosp., No. 10 Civ.
1237(CM)(RLE), 2012 WL 893180 (S.D.N.Y. Mar. 15, 2012) (citing Jafri v. Rosenfeld, No. 04
Civ. 2457(JCF), 2005 WL 991784 (S.D.N.Y. Apr. 26, 2005)); German v. Pena, 88 F. Supp. 2d
216,219-20 (S.D.N.Y. 2000).
Plaintiff did not specifically assert in the EEOC charge that he ever requested defendant
to reasonably accommodate his disability by hiring him for the senior paralegal position, or either
of the two (2) technical clerk positions, or that defendant's failure to hire him for those positions
was in any way based upon his disability. Accordingly, plaintiff may only pursue his ADA
claims based upon defendant's failure to hire him for the senior paralegal position (second claim
for relief), or either of the technical clerk positions (third claim for relief), if those claims are
"reasonably related" to the claims plaintiff did assert in the EEOC charge.
In his EEOC charge, plaintiff clearly asserted a claim that defendant violated the ADA by
refusing to reasonably accommodate his disability by permitting him to work in a sedentary
position. In addition, plaintiff alleges that the EEOC found, inter alia, that defendant violated
the ADA by "failing to consider [him] for the second Technical Clerk position or even notifY him
that the position existed." (Compl., ~ 43). Assuming the truth of that allegation, the EEOC
evidently investigated plaintiffs claims that defendant's failure to hire him for certain positions
was discriminatory based upon his disability in violation of the ADA. Since plaintiff's second
and third claims for relief fell within the scope of the EEOC investigation, they are exhausted as
"reasonably related" to the claims set forth in the EEOC charge. Accordingly, the branch of
defendant's motion seeking dismissal of plaintiffs second and third claims for failure to exhaust
administrative remedies is denied.
Claim based upon Defendant's Failure to Notify Plaintiff about the Second
Technical Clerk Position
Defendant contends that plaintiffs purported claim that it violated the ADA by failing to
notify him that a second technical clerk position had been posted fails to state a claim upon
which relief may be granted because the ADA only requires that reasonable accommodations be
given to individuals with disabilities, not that they be given preferential treatment. However,
plaintiffs ADA claim based upon the refusal to hire him for either of the two (2) technical clerk
positions (third claim for relief) alleges only that defendant violated the ADA by refusing to
reasonably accommodate his disability by hiring him into either of the two (2) technical clerk
positions. (Compl., 1 58). Plaintiff does not allege in his complaint that defendant's failure to
inform him that a second technical clerk position was posted constituted unlawful discrimination
based upon his disability in violation of the ADA', and does not seek leave to amend his
complaint to re-plead his third claim for relief, (see Plf. Mem., at 23-24).
In contrast, in his Title VII gender discrimination claim (seventh claim for relief), plaintiff
specifically alleges that by "failing to inform [him] of an opening for a second Technical Clerk
position, defendant * * * acted in accordance with a practice and pattern of hiring predominantly
females as support staff in its Trial Division Offices." (Compl., 1 84).
Section 297(9) of the NYSHRL provides, in pertinent part, as follows:
Any person claiming to be aggrieved by an unlawful discriminatory practice shall
have a cause of action in any court of appropriate jurisdiction for damages • • •
and such other remedies as may be appropriate, * * *, unless such person had filed
a complaint hereunder or with any local commission on human rights, • • *. At
any time prior to a hearing before a hearing examiner, a person who has a
complaint pending at the division may request that the division dismiss the
complaint and annul his or her election of remedies so that the human rights law
claim may be pursued in court, and the division may, upon such request, dismiss
the complaint on the grounds that such person's election of an administrative
remedy is annulled. Notwithstanding subdivision (a) of section two hundred four
of the civil practice law and rules, if a complaint is so annulled by the division,
upon the request of the party bringing such complaint before the division, such
party's rights to bring such cause of action before a court of appropriate
jurisdiction shall be limited by the statute of limitations in effect in such court at
the time the complaint was initially filed with the division. * * * A complaint filed
by the equal employment opportunity commission to comply with the
requirements of42 USC 2000e-5(c)[ 5] and 42 USC 12II7(a) ***shall not
constitute the filing of a complaint within the meaning of this subdivision. No
person who has initiated any action in a court of competent jurisdiction or who
has an action pending before any administrative agency under any other law of the
state based upon an act which would be an unlawful discriminatory practice under
this article, may file a complaint with respect to the same grievance under this
section* * *."
N.Y. Exec. Law§ 297(9). Thus, under New York's election of remedies statute, "when an
aggrieved party chooses to file a claim before the [NYSDHR], the complainant is generally
foreclosed from seeking redress elsewhere while the claim is pending." Freudenthal v. Countv of
42 U.S.C. § 2000e-5(c) provides, in pertinent part, as follows:
"In the case of an alleged unlawful employment practice occurring in a [deferral
State, such as New York]***, no charge may be filed under** *[42 U.S.C. §
2000e-5(b)] by the person aggrieved before the expiration of sixty days after
proceedings have been commenced under the State or local law, unless such
proceedings have been earlier terminated, * * *."
Nassau, 99 N.Y.2d 285,290, 755 N.Y.S.2d 56, 784 N.E.2d I 165 (N.Y. 2003); see York v.
Association of Bar ofCitv ofNew York, 286 F.3d 122, 127 (2d Cir. 2002). However, a
complainant does not elect an administrative remedy within the meaning ofNew York's election
of remedies statute, and retains the right to commence an action in court, if he files a charge with
the EEOC, which then forwards it to the NYSDHR for filing. Barr v. BJ's Wholesale Club Inc.,
62 A.D.3d 820, 821, 879 N. Y.S.2d 558 (2d Dept. 2009); Hirsch v. Morgan Stanley & Co .. Inc.,
239 A.D.2d 466,467,657 N.Y.S.2d 448 (2d Dept. 1997). Since plaintiff did not file a complaint
with the NYSDHR pursuant to New York Executive Law§ 297, his right to commence an action
in court is limited not by the election of remedies provision, but by the applicable statute of
Claims under the NYSHRL are subject to a three (3)-year statute of limitations, see
Lightfoot v. Union Carbide Com., 110 F.3d 898,907 (2d Cir. 1997); Mumhy v. American Home
Products Com., 58 N.Y.2d 293, 307,461 N.Y.S.2d 232, 448 N.E.2d 86 (N.Y. 1983) ("[T]he
institution of civil actions to recover damages for unlawful discriminatory practices under [the
NYSHRL] is governed by the three year period of limitations prescribed in [N.Y.] CPLR 214
(subdiv. 2) * * *."),and accrue "on the date that an adverse employment determination is made
and communicated to [the] plaintiff* * * ." Pinder v. Citv of New York, 49 A.D.3d 280, 281,
853 N.Y.S.2d 312 (1" Dept. 2008); see also Milani v. International Business Machines Com.,
Inc., 322 F.Supp.2d 434,451 (S.D.N.Y. 2004). However, the statute of limitations for claims
under the NYSHRL is subject to tolling pursuant to Section 204(a) of the New York Civil
Practice Law and Rules which provides that "[w]here the commencement of an action has been
stayed by* * *statutory prohibition, the duration of the stay is not a part of the time within
which the action must be commenced." Accordingly, courts in this Circuit have held that the
three (3)-year limitations period for NYSHRL claims "is tolled for the period between the filing
of an EEOC charge and the issuance by the EEOC of a right-to-sue letter." DeNigris,F.Supp.2d - , 2012 WL 955382, at* 5 (S.D.N.Y. Mar. 9, 2012); see also Ezuma v. City
University of New York, 665 F.Supp.2d 116, 119 (E.D.N.Y. 2009), affd, 367 Fed. Appx. 178
(2d Cir. 20 I 0) (holding that the statute of limitations on a claim under the NYSHRL is tolled
during the period in which a complaint is filed with the EEOC); Sundaram v. Brookhaven
National Laboratories, 424 F.Supp.2d 545, 565 (E.D.N.Y. 2006) ("Because complaints filed with
the EEOC are deemed constructively to be cross-filed with the NYDHR, the statute [of
limitations] is also tolled [pursuant to N.Y. C.P.L.R. § 204(a)] during the pendency of a claim
filed with the EEOC.")
Plaintiff filed his complaint on January 14, 2011. Plaintiff was notified that defendant
denied his request to accommodate his disability by assigning him to a sedentary position or
modifying his job duties in the claims department by letter dated January 22, 2008. Moreover,
although plaintiff applied for the first technical clerk position on January 4, 2008, it is at least
arguable that he was not notified that he had not been hired for either of the two (2) technical
clerk positions until February 4, 2008, when the first posting for that position was cancelled.
Thus, plaintiffs NYSHRL claims based upon those acts (eighth and tenth claims for relief) are,
or appear at this stage of the proceeding to be, timely.
However, plaintiff was notified no later than December 14, 2007, when he sent an e-mail
to Romulus, that he had not been hired for the senior paralegal position; knew as of November
13, 2007 that he had exhausted his leave; complained of retaliation based upon allegations that
defendant"(!) appl[ied] a hypertechnical review of his qualifications [for the senior paralegal
position]; (2) post[ed] an inaccurate description for the Senior Paralegal position; [and] (3)
stonewall[ ed] his requests for an accommodation by repeatedly requiring plaintiff to obtain
additional information from his doctor***," by e-mail dated December 20, 2007; and knew that
he had not received "a substantive response" to the December 20, 2007 e-mail shortly thereafter.
Thus, unless the limitations periods applicable to those NYSHRL claims were tolled, plaintiff's
claims alleging discrimination based upon defendant's failure to hire plaintiff for the senior
paralegal position (ninth and thirteenth claims for relief) and failure to afford plaintiff the
opportunity to request and receive additional leave time (eleventh claim for relief), and retaliation
(twelfth claim for relief), with the exception of his claim that the termination of his employment
was retaliatory, must have been commenced by December 14, 2010, November 13,2010 and
December 20, 20 I 0, or shortly thereafter, respectively. Since, as set forth above, plaintiff did not
file a timely charge with the EEOC with respect to his ADA and Title VII claims based upon his
allegations of discrimination relating to the failure to hire him for the senior paralegal position
and failure to afford him the opportunity to request and receive additional leave, and retaliation,
with the exception of his claim that the termination of his employment was retaliatory, Section
204(a) of the New York Criminal Practice Law and Rules is inapplicable to toll the statute of
limitations applicable to those claims. See, u
Polakoffv. St. Lawrence University, No. 95-cv-
1660,1996 WL 481552, at* 5 (N.D.N.Y. Aug. 19, 1996) (finding that since the EEOC was not
asserted against a particular defendant, there was never any administrative charge pending
against hin and, thus, N.Y. C.P.L.R. § 204(a) was inapplicable because there was no statutory bar
preventing the plaintiff from proceeding in court against that defendant). Accordingly, the
branch of defendant's motion seeking dismissal of plaintiff's ninth, eleventh, twelfth and
thirteenth claims for relief is granted to the extent that plaintiffs ninth, eleventh and thirteenth
claims for relief are dismissed in their entirety, and plaintiffs twelfth claim for relief is dismissed
in its entirety with the exception of his claim that the termination of his employment was
retaliatory, as time barred.
For the reasons set forth above, defendant's motion seeking dismissal of plaintiff's
complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is granted to the
extent that plaintiff's (a) second, fourth, sixth, ninth, eleventh and thirteenth claims for relief are
dismissed in their entirety with prejudice, (b) fifth and twelfth claims for relief are dismissed in
their entirety with prejudice, except insofar as those claims allege that plaintiffs termination was
retaliatory, and (c) first claim for relief is dismissed to the extent it is based upon acts occurring
prior to January 7, 2008, as time-barred, and defendant's motion is otherwise denied. 6 The
parties are directed to appear, with authority or with individuals with authority to settle this
For the sake of clarity, the following causes of action remain: (I) plaintiffs ADA and
NYSHRL claims alleging that defendant failed to reasonably accommodate his disability by not
permitting him to work a modified or sedentary assignment in the claims department, to the
extent the discrete acts of discrimination occurred on or after January 7, 2008 (first and eighth
claims for relief, respectively); (2) plaintiffs ADA, Title VII and NYSHRL claims alleging that
defendant refused to reasonably accommodate his disability and/or discriminated against him
based upon his gender, by not hiring him into either of the technical clerk positions (third,
seventh and tenth claims for relief, respectively); and (3) plaintiff's ADA and NYSHRL claims
alleging that the termination of his employment was retaliatory (fifth and twelfth claims for
matter, in my courtroom located at 1010 Federal Plaza, Central Islip, New York, on St:ptt:mbt:r
27,2012 at 11:15 a.m. for an initial conference before me.
s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
Dated: September 4, 2012
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