Clarke v. Roslyn Union School District
Filing
28
MEMORANDUM AND ORDER granting 12 Motion to Dismiss for Failure to State a Claim. For the reasons set forth in the attached Memorandum and Order, the Court grants defendant's motion to dismiss the complaint in its entirety. However, in an abu ndance of caution, the Court grants plaintiff leave to replead her claims. In so doing, plaintiff must attempt to provide grounds for equitable tolling, and must allege how the events and incidents plaintiff describes in her complaint were taken on t he basis of, or related to, plaintiff's protected status under Title VII, the ADEA, or the ADA. Plaintiff must file the amended complaint by August 22, 2012. Failure to do so will result in dismissal of the complaint with prejudice, and the case will be closed. The Court has mailed a copy of the Memorandum and Order to the plaintiff. Ordered by Judge Joseph F. Bianco on 7/17/2012. (Weber, Rebecca)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-2957 (JFB)(AKT)
_____________________
EVELYN E. CLARKE,
Plaintiff,
VERSUS
ROSLYN UNION SCHOOL DISTRICT,
Defendant.
___________________
MEMORANDUM AND ORDER
July 17, 2012
___________________
JOSEPH F. BIANCO, District Judge:
Evelyn Clarke (“Clarke” or “plaintiff”),
proceeding pro se and in forma pauperis,
filed this action against the Roslyn Union
Free School District 1 (“District” or
“defendant”) on June 20, 2011, alleging that
the District, her former employer, violated
Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e to 2000e-17; the Age
Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. §§ 621-34; and the
Americans with Disabilities Act of 1990
(“ADA”), 42 U.S.C. §§ 12112-12117.
Specifically, plaintiff alleges that defendant
discriminated against her by terminating her,
failing to promote her, establishing unequal
terms and conditions of her employment,
1
Incorrectly sued herein as the Roslyn Union School
District.
retaliating against her, and by failing to give
her overtime.
Defendant moves to dismiss the
complaint, pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, on the
grounds that (1) the complaint is untimely,
(2) plaintiff’s ADA claim is unexhausted
because she failed to raise it in her New
York State Division of Human Rights
(“SDHR”) complaint, and (3) the complaint
fails to state a cause of action.
As discussed below, defendant’s motion
to dismiss is granted. The complaint is
untimely, the ADA claim is unexhausted,
and plaintiff failed to state a cause of action
with respect to any of her claims. In an
abundance of caution, however, the Court
grants plaintiff leave to replead her claims.
In so doing, plaintiff must attempt to provide
to speak to the union representative.
She wouldn’t return my calls. Mrs.
Hunter tried to call my union
representative several times. She did
not return her calls. The day of my
forced
resignation
the union
representative was present. She
didn’t speak anything on my behalf.
The day I was fired, I was directed to
not return back to the job. Mrs.
Hunter set up an appointment with
Mr. Gragone and asked to allow me
(Evelyn Clarke) to resign. Otherwise,
he said that “If She doesn’t resign;
she would go through a hearing and
could loose [sic] her retirement
benefits.
grounds for equitable tolling and must allege
how the events and incidents plaintiff
describes in her complaint were taken on the
basis of plaintiff’s protected status under
Title VII, the ADEA, or the ADA, such that
a plausible discrimination claim exists.
I. BACKGROUND
The following facts are taken from the
complaint filed on June 20, 2011
(“Compl.”), and are not findings of fact by
the Court. Instead, the Court will assume
the facts in the complaint to be true and, for
purposes of the pending 12(b)(6) motion to
dismiss, will construe them in a light most
favorable to plaintiff, the non-moving party.
Plaintiff was employed by the District in
food service. (Compl. ¶ 8.) Plaintiff alleges
the following in her complaint, which reads,
in its entirety:
Id.
II. PROCEDURAL HISTORY
Plaintiff filed the complaint in this action
on June 20, 2011. Defendant filed a motion
to dismiss on September 15, 2011. Plaintiff
filed an Affirmation in Opposition to the
motion to dismiss on December 5, 2011.
Defendant filed a reply to plaintiff’s
Affirmation on December 9, 2011. The
Court has fully considered the arguments
and submissions of the parties.
No one provided for to hear
Complaints or grievances[.] Wasn’t
given any training, Cooked but is not
paid for a Cook’s Wages[.] Not
allowed to have personal effe[c]ts in
Kitchen. When all other were
allowed to do so. Had to scrub pots +
pans that were left from another
shift. Was barred from working at
Cash Register[.] Heavy work of Pots
+ Pans left for her to work. Denied
advancement
+
growth
in
workplace[.] Transferred without
notice to another Job site Without
any input. No transportation to new
site accept [sic] to walk. Had to see
psychological counseling.
III. STANDARD OF REVIEW
In reviewing a motion to dismiss
pursuant to Rule 12(b)(6), the Court must
accept the factual allegations set forth in the
complaint as true and draw all reasonable
inferences in favor of the plaintiff. See
Cleveland v. Caplaw Enters., 448 F.3d 518,
521 (2d Cir. 2006); Nechis v. Oxford Health
Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005).
“In order to survive a motion to dismiss
under Rule 12(b)(6), a complaint must
allege a plausible set of facts sufficient ‘to
raise a right to relief above the speculative
I was locked in the school freezer. I
was-was attacked and choked by my
supervisor. I tried to speak to the
superintendent many times but was
never given an appointment[.] I tried
2
66, 72 (2d Cir. 2009) (applying Twombly
and Iqbal to pro se complaint).
level.’” Operating Local 649 Annuity Trust
Fund v. Smith Barney Fund Mgmt. LLC, 595
F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007)). This
standard does not require “heightened fact
pleading of specifics, but only enough facts
to state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570, 127
S.Ct. 1955.
The Court notes that in adjudicating a
Rule 12(b)(6) motion, it is entitled to
consider: “(1) facts alleged in the complaint
and documents attached to it or incorporated
in it by reference, (2) documents ‘integral’
to the complaint and relied upon in it, even
if not attached or incorporated by reference,
(3) documents or information contained in
defendant’s motion papers if plaintiff has
knowledge or possession of the material and
relied on it in framing the complaint, (4)
public disclosure documents required by law
to be, and that have been, filed with the
Securities and Exchange Commission, and
(5) facts of which judicial notice may
properly be taken under Rule 201 of the
Federal Rules of Evidence.” In re Merrill
Lynch & Co., 273 F. Supp. 2d 351, 356-57
(S.D.N.Y. 2003) (internal citations omitted),
aff’d in part and reversed in part on other
grounds sub nom., Lentell v. Merrill Lynch
& Co., 396 F.3d 161 (2d Cir. 2005), cert.
denied, 546 U.S. 935 (2005); see also
Cortec Indus., Inc. v. Sum Holding L.P., 949
F.2d 42, 48 (2d Cir. 1991) (“[T]he district
court . . . could have viewed [the
documents] on the motion to dismiss
because there was undisputed notice to
plaintiffs of their contents and they were
integral to plaintiffs’ claim.”); Brodeur v.
City of New York, No. 04 Civ. 1859 (JG),
2005 U.S. Dist. LEXIS 10865, at *9-10
(E.D.N.Y. May 13, 2005) (court could
consider documents within the public
domain on a Rule 12(b)(6) motion to
dismiss).
The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth a two-pronged approach
for courts deciding a motion to dismiss. 556
U.S. 662, 129 S. Ct. 1937 (2009). The
Court instructed district courts to first
“identify[ ] pleadings that, because they are
no more than conclusions, are not entitled to
the assumption of truth.” 129 S.Ct. at 1950.
Though “legal conclusions can provide the
framework of a complaint, they must be
supported by factual allegations.” Id.
Second, if a complaint contains “wellpleaded factual allegations, a court should
assume their veracity and then determine
whether they plausibly give rise to an
entitlement to relief.” Id.
Where, as here, the plaintiff is
proceeding pro se, “[c]ourts are obligated to
construe the [plaintiff’s] pleadings . . .
liberally.” McCluskey v. New York State
Unified Ct. Sys., No. 10-CV-2144
(JFB)(ETB), 2010 WL 2558624, at *2
(E.D.N.Y. June 17, 2010) (citing Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185,
191 (2d Cir. 2008)); McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004)). A pro se plaintiff’s complaint,
while liberally interpreted, still must “‘state
a claim to relief that is plausible on its
face.’” Mancuso v. Hynes, 379 Fed. App’x
60, 61 (2d Cir. 2010) (citing Iqbal, 129 S.Ct.
at 1949); see also Harris v. Mills, 572 F.3d
3
393, 102 S. Ct. 1127, 71 L. Ed. 2d 234
(1982). Accordingly, courts have excused
the failure to timely file an employment
discrimination complaint in court where a
plaintiff has received inadequate notice of
his or her obligations or has been misled by
affirmative misconduct of the defendant.
See, e.g., Baldwin Cnty. Welcome Ctr. v.
Brown, 466 U.S. 147, 151, 104 S. Ct. 1723,
80 L. Ed. 2d 196 (1984). In addition, the
statutory time period for filing a federal
lawsuit has been tolled during the pendency
of an application for the appointment of pro
bono counsel, id. (citing Harris v.
Walgreen’s Distrib. Ctr., 456 F.2d 588 (6th
Cir. 1972)), or “where the court has led the
plaintiff to believe that she had done
everything required of her.” Id. (citing
Carlile v. South Routt Sch. Dist. RE 3-J, 652
F.2d 981 (10th Cir. 1981)); see also South v.
Saab Cars USA, Inc., 28 F.3d 9, 11-12 (2d
Cir. 1994) (the established equitable grounds
warranting equitable tolling of the ninetyday limitations period for filing federal
employment discrimination claims include
circumstances: (1) “where the claimant has
actively pursued his judicial remedies by
filing a defective pleading during the
statutory period,” (2) “where the claimant
has been induced or tricked . . . into
allowing the filing deadline to pass,” (3)
“where the court has led the plaintiff to
believe that she had done all that was
required of her,” (4) “where affirmative
misconduct on the part of the defendant may
have lulled plaintiff into inaction,” (5)
“where the claimant has received inadequate
notice,” and (6) “where a motion for
appointment of counsel is pending.”).
IV. DISCUSSION
A. Untimeliness
1.
Applicable Law
A Title VII action must be commenced
by a plaintiff within ninety days of his or her
receipt of a Notice of Right to Sue (“rightto-sue letter”) from the EEOC. See 42
U.S.C. § 2000e-5(f)(1); see, e.g., Johnson v.
St. Barnabas Nursing Home, 368 F. App’x
246, 248 (2d Cir. 2010) (allegation
presented in an EEOC charge is timely only
if a plaintiff commences a court action
within ninety days of receipt of the EEOC
right-to-sue letter). Similarly, ADEA and
ADA claims must also be filed within ninety
days of receipt of a right-to-sue letter in
order to be timely asserted. See 29 U.S.C.
§ 626(e); 42 U.S.C. § 12117(a) (stating that
ADA
employment
discrimination
procedures shall include those set forth at
42 U.S.C. § 2000e-5(f)(1)); see, e.g.,
Presser v. Key Foods Stores Coop., Inc., 316
F. App’x 9, 11 (2d Cir. 2009) (“To be
timely, ADEA claims must be filed within
90 days of receipt of a right-to-sue letter.”).
“A district court may not extend this 90-day
limitations period ‘by even one day’ unless a
‘recognized
equitable
consideration’
justifies such an extension.” Jones v. City of
N.Y. Dept. of Hous., Pres. and Dev., No. 01
Civ. 10619 (AKH), 2002 U.S. Dist. LEXIS
10940, 2002 WL 1339099, at *5 (S.D.N.Y.
June 18, 2002) (quoting Johnson v. Al Tech
Specialties Steel Corp., 731 F.2d 143, 146
(2d Cir. 1984)).
It is well-settled that filing a timely
charge of discrimination with the EEOC is
not a jurisdictional prerequisite to suit in
federal court, but “a requirement that, like a
statute of limitations, is subject to waiver,
estoppel, and equitable tolling.” Zipes v.
Trans World Airlines, Inc., 455 U.S. 385,
2.
Application
Although plaintiff checked the box on
the boilerplate Pro Se Office form
Complaint that avers that the EEOC had not
issued her a right-to-sue letter, the docket
4
includes a letter, dated June 20, 2011, from
the Pro Se Office which states, “As per our
telephone conversation today, you are
reminded that you must submit a copy of
your ‘Right to Sue’ letter to this Court at
your earliest convenience.” (Letter from Pro
Se Office to Plaintiff, June 20, 2011, ECF
No. 3.) On June 23, 2011, plaintiff filed the
right-to-sue letter with the Court. The rightto-sue letter indicates that it was mailed on
March 15, 2011. Plaintiff filed the instant
action on June 20, 2011 – 97 days after the
right-to-sue letter was mailed.
therefore untimely. Moreover, plaintiff has
made no argument in any of her filings with
the Court that the action should be subject to
equitable tolling. Accordingly, the Court
dismisses plaintiff’s claims for untimeliness.
In an abundance of caution, 3 however, the
Court will allow plaintiff to replead her
discrimination claims, and give her the
opportunity to provide a basis for equitable
tolling (if such a basis exists). In the
amended complaint, plaintiff must explain
why equitable principles should excuse the
untimeliness issues identified above.
The general rule is that notice provided
by a government agency is assumed to have
been mailed on the date shown on the notice
and received three days after its mailing.
Sherlock v. Montefiore Med. Ctr., 84 F.3d
522, 526 (2d Cir. 1996) (“normally it may
be assumed, in the absence of challenge, that
a notice provided by a government agency
has been mailed on the date shown on the
notice”). This rule is not irrebutable,
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 than its
typewritten date or that it took longer than
three days to reach her by mail, the initial
presumption is not dispositive.” Id.
B. Failure to Exhaust
Defendant also argues that plaintiff’s
ADA claim must be dismissed because
plaintiff failed to exhaust her administrative
remedies with respect to this claim.
Specifically, defendant argues that plaintiff
never raised the ADA claim in her SDHR
Verified Complaint. Plaintiff did not check
the line on the SDHR Verified Complaint
stating that she experienced disability
discrimination. Nor did plaintiff make any
other allegations in her SDHR Verified
Complaint concerning discrimination on the
basis of disability. Thus, defendant argues
that the ADA claim is unexhausted and
should be dismissed. As set forth below, the
Court agrees.
Plaintiff has introduced no admissible
evidence to demonstrate that the right-to-sue
letter was mailed later than Tuesday, March
15, 2011, or that it took longer than three
days to reach her. Accordingly, the Court
presumes that plaintiff received the right-tosue letter by Friday, March 18, 2011. 2 Since
plaintiff filed the instant action 94 days later,
on June 20, 2011, her complaint was not
filed within the requisite 90 days and is
Generally, to bring a Title VII
discrimination claim in federal district court,
a plaintiff must first exhaust her
administrative remedies by “filing a timely
charge with the EEOC or with ‘a State or
local agency with authority to grant or seek
3
Cf. Bisson v. Martin Luther King Jr. Health Clinic,
No. 07-5416-cv, 2008 U.S. App. LEXIS 23977, 2008
WL 4951045, at *3-4 (2d Cir. Nov. 20, 2008)
(summary order) (remanding case to district court to
consider whether equitable tolling should apply to
time-barred claim).
2
Even if the plaintiff received the right-to-sue letter
on Saturday, March 19, 2011, the complaint would
still be untimely.
5
relief from such practice.’” Holtz v.
Rockefeller & Co., 258 F.3d 62, 82-83 (2d
Cir. 2001) (quoting 42 U.S.C. § 2000e5(e)). 4 The same procedures apply for ADA
employment discrimination claims. See 42
U.S.C. § 12117(a) (ADA employment
discrimination procedures shall include
those set forth at 42 U.S.C. § 2000e-5(e)).
However, “‘claims that were not asserted
before the EEOC [or an appropriate State or
local agency] may be pursued in a
subsequent federal court action if they are
reasonably related to those that were filed
with the agency.’” Jute v. Hamilton
Sundstrand Corp., 420 F.3d 166, 177 (2d
Cir. 2005) (quoting Legnani v. Alitalia Linee
Aeree Italiane, S.P.A., 274 F.3d 683, 686
(2d Cir. 2001) (per curiam)). “Reasonably
related conduct is that which ‘would fall
within the scope of the EEOC investigation
which can reasonably be expected to grow
out of the charge that was made.’” Id.
(quoting Fitzgerald v. Henderson, 251 F.3d
345, 359-69 (2d Cir. 2001)). 5 In determining
whether a claim is “reasonably related” to
the EEOC charge, “‘the focus should be on
the factual allegations made in the [EEOC]
charge itself . . .’” and on whether those
allegations “gave the [EEOC] ‘adequate
notice to investigate’” the claims asserted in
court. Williams v. N.Y.C. Hous. Auth., 458
F.3d 67, 70 (2d Cir. 2006) (quoting Deravin
v. Kerik, 335 F.3d 195, 201-02 (2d Cir.
2003)).
Although plaintiff fails to explain how
any of the events and actions described in
her complaint were motivated by
discrimination on any basis, the claim that
defendant’s actions were motivated by
discrimination on the basis of disability is
not “reasonably related” to her claims that
defendant’s events and actions were
motivated by discrimination on the basis of
age or a protected status under Title VII. See
Sotolongo v. N.Y.C. Transit Auth., No. 999195, 2000 U.S. App. LEXIS 14161, at *8
(2d Cir. June 15, 2000) (summary order)
(dismissing ADA claim concerning back
injury as “not reasonably related to
[plaintiff’s] Title VII and ADEA claims”);
Vallimont v. Eastman Kodak Co., No. 987483, 1999 U.S. App. LEXIS 22825, at *2
(2d Cir. Sept. 17, 1999) (summary order)
(“Appellant’s EEOC charge alleged only
discrimination
based
on
disability.
Consequently, the district court did not have
jurisdiction over appellant’s Title VII
(gender) and ADEA claims.”). Accordingly,
plaintiff has failed to exhaust her
administrative remedies with respect to the
ADA claim. The Court therefore dismisses
the ADA claim for failure to exhaust. In
order to properly exhaust her administrative
remedies with respect to the ADA claim,
plaintiff would have needed to file an
administrative charge within 300 days of the
conduct at issue. See Goodwin v. Solil
Mgmt. LLC, 10 Civ. 5546 (KBF), 2012 U.S.
Dist. LEXIS 72648, at *10 (S.D.N.Y. May
22, 2012); 42 U.S.C. § 2000e-5(e)(1); 42
U.S.C. § 12117. More than 300 days have
passed since that date, and plaintiff has not
alleged any basis for equitable tolling. See,
e.g., Epps v. City of Pittsburgh, 33 F. Supp.
2d 409, 413 (W.D. Pa. 1998) (finding no
grounds for equitable tolling where no
charge was filed with EEOC).
4
As discussed above, plaintiff’s EEOC charge was
untimely. However, for the purposes of this section,
the Court assumes that plaintiff timely filed the
charge with the EEOC.
5
Two other kinds of claims may be considered
“reasonably related”: those alleging “retaliation by an
employer against an employee for filing an EEOC
charge,” and those alleging “further incidents of
discrimination carried out in precisely the same
manner alleged in the EEOC charge.” Butts v. N.Y.C.
Dep’t of Hous. Pres. & Dev., 990 F.2d 1397, 1402-03
(2d Cir. 1993). Neither is at issue in this case.
6
(3) her wages were insufficient; (4) she was
not allowed to have personal belongings in
the kitchen; (5) she had to scrub pots left
from another shift; (6) she was not permitted
to work at the cash register; (7) she was
“denied advancement” in the workplace; (8)
she was transferred to another site; (9) she
had to seek psychological counseling; (10)
she was locked in a freezer; (11) her
supervisor
attacked
her;
(12)
the
superintendent and union representatives
would not return her calls or see her; (13)
she was asked to resign or risk losing her
retirement benefits.
In an abundance of caution, however, the
Court will allow plaintiff to replead her
ADA claim, and give her the opportunity to
provide a basis for equitable tolling (if such
a basis exists) for her failure to exhaust at all
with the EEOC on the ADA claim. In the
amended complaint, plaintiff must explain
why equitable principles should excuse her
failure to file an administrative charge
concerning the ADA claim within 300 days
of the alleged discriminatory conduct.
C. Failure to State a Claim
The Court also concludes that, even
assuming arguendo that plaintiff’s claims
are timely, they are not plausible and, thus,
cannot survive a motion to dismiss. In
particular, although plaintiff checks off the
boxes on the amended complaint form for
discrimination under Title VII, the ADEA,
and the ADA, the complaint is completely
devoid of any factual allegations showing
how the incidents plaintiff describes were
taken or motivated in any way by
discriminatory animus.
At no point does the plaintiff allege that
these incidents or actions were taken on the
basis of plaintiff’s “race, color, religion, sex,
or national origin,” 42 U.S.C. § 2000e-2, or
on the basis of plaintiff’s age, 29 U.S.C.
§ 623, or on the basis of disability, 42
U.S.C. § 12112. Such allegations are,
therefore, insufficient to state a claim of
discrimination, even where the plaintiff is
pro se. See, e.g., Gear v. Dep’t of Educ., 07
Civ. 11102 (NRB), 2010 U.S. Dist. LEXIS
137153, at *14 (S.D.N.Y. Dec. 21, 2010)
(pro se plaintiff’s “single, conclusory
allegation that [the union] would have acted
differently if she were white” was
insufficient to state a plausible claim for
relief where the “allegation [was]
unaccompanied by any facts regarding [the
union’s] statements, actions, or policies that
would support a plausible inference of
discriminatory animus or disparate impact”);
see also Martinez v. City of New York, 338
F. App’x 71, 73 (2d Cir. 2009) (summary
order) (dismissing pro se appellant’s
complaint that “he was improperly fined
three days’ pay based on his supervisor’s
bias against African-Americans” because the
“complaint acknowledged the Defendants’
non-discriminatory reason for the adverse
action and failed to allege facts which, if
A complaint must allege a plausible
claim of discrimination and “‘give the
defendant fair notice of what the plaintiff’s
claim is and the grounds upon which it
rests.’” Swierkiewicz v. Sorema, 534 U.S.
506, 512, 122 S. Ct. 992, 152 L. Ed. 2d 1
(2002) (quoting Conley v. Gibson, 355 U.S.
41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957));
see Gilman v. Inner City Broad. Corp., No.
08 Civ. 8909 (LAP), 2009 U.S. Dist. LEXIS
85479, 2009 WL 3003244, at *10-13
(S.D.N.Y. Sept. 18, 2009) (discussing
pleading standards in discrimination cases
following Iqbal and Twombly). Plaintiff’s
complaint fails to meet these standards.
Plaintiff alleges that: (1) the District did not
provide procedures for hearing her
complaints; (2) she wasn’t given training;
7
V. CONCLUSION
proved, would establish that this reason for
the penalty was pretextual, and that the
action was, in fact, taken due to a
discriminatory animus”); Reyes v. Fairfield
Props., 661 F. Supp. 2d 249, 269 (E.D.N.Y.
2009) (“No identification of particular
events or facts underlying the race-based
discrimination claims is set forth in the
amended complaint, and thus the claim is
properly dismissed under Rule 12(b)(6) of
the Federal Rules of Civil Procedure.”);
Zheng v. Wong, No. 07-CV-4768 (FB)(JO),
2009 U.S. Dist. LEXIS 74891, 2009 WL
2601313, at *20 (E.D.N.Y. Aug. 24, 2009)
(dismissing sex discrimination claim
because complaint contained no factual
allegations to support claim); Delgado v.
Triborough Bridge & Tunnel Auth., 485 F.
Supp. 2d 453, 463 (S.D.N.Y. 2007) (“A
complaint consisting only of assertions,
setting forth no specific facts upon which a
court could find a plausible violation of Title
VII, must be dismissed for failure to state a
claim under Rule 12(b)(6).”).
For the foregoing reasons, the Court
grants defendant’s motion to dismiss the
complaint in its entirety. However, in an
abundance of caution, the Court grants
plaintiff leave to replead her claims. In so
doing, plaintiff must attempt to provide
grounds for equitable tolling, and must
allege how the events and incidents plaintiff
describes in her complaint were taken on the
basis of, or related to, plaintiff’s protected
status under Title VII, the ADEA, or the
ADA. Plaintiff must file the amended
complaint by August 22, 2012. Failure to do
so will result in dismissal of the complaint
with prejudice, and the case will be closed.
SO ORDERED.
______________________
JOSEPH F. BIANCO
United States District Judge
In short, plaintiff has failed to allege any
facts which provide a basis for a plausible
discrimination claim under Title VII, the
ADEA, and the ADA. However, in an
abundance of caution, the Court will provide
plaintiff with an opportunity to replead with
respect to these discrimination claims in
order to set forth additional allegations as to
how the events and incidents plaintiff
describes in her complaint were taken on the
basis of, or related to, plaintiff’s protected
status under Title VII, the ADEA, or the
ADA.
Dated: July 17, 2012
Central Islip, New York
*
*
*
Plaintiff is proceeding pro se, 1781
South Spring Road, Apt. 331, Vineland, NJ
08361. Defendant is represented by David
Ferdinand Kwee, Ingerman Smith, L.L.P.,
150 Motor Parkway, Suite 400, Hauppauge,
NY 11788.
8
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