Kelly v. North Shore-Long Island Health System

Filing 29

MEMORANDUM & ORDER granting in part and denying in part 19 Motion to Dismiss; For the foregoing reasons, Defendant's motion is GRANTED IN PART and DENIED IN PART. Plaintiff's claim for ADA discrimination based on constructive discharg e is DISMISSED WITH PREJUDICE. Plaintiff's claims for ADA retaliation based on her filing of the EEOC Complaint is DISMISSED WITH PREJUDICE. Plaintiff's claim for ADA retaliation based on the July 27th Call is DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction. Plaintiff's remaining claim is for ADA discrimination based on Defendant placing her on administrative leave. So Ordered by Judge Joanna Seybert on 1/15/2016. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
ANNE MARIE KELLY,
Plaintiff,

MEMORANDUM & ORDER
13-CV-1284(JS)(SIL)

-againstNORTH SHORE-LONG ISLAND
JEWISH HEALTH SYSTEM,

Defendant.
-----------------------------------X
APPEARANCES
For Plaintiff:
Louis D. Stober, Jr., Esq.
Albina Kataeva, Esq.
Law Offices of Louis D. Stober, Jr., LLC
350 Old Country Road, Suite 205
Garden City, NY 11530
For Defendants:

Christopher G. Gegwich, Esq.
Alexander Elliott Gallin, Esq.
Nixon Peabody LLP
50 Jericho Quadrangle, Suite 300
Jericho, NY 11753

SEYBERT, District Judge:
Presently pending before the Court is defendant North
Shore-Long Island Jewish Health System’s (“LIJ” or “Defendant”)
motion

to

dismiss

plaintiff

Ann

Marie

Kelly’s

(“Plaintiff”)

Amended Complaint pursuant to Federal Rule of Civil Procedure
12(b)(1) and (b)(6).

(Defs.’ Mot., Docket Entry 19.)

For the

following reasons, Defendant’s Motion is GRANTED IN PART and DENIED
IN PART.

BACKGROUND1
I.

Factual Background
The Court assumes familiarity with the background of

this case, which is set forth in the Memorandum and Order dated
June 22, 2014.

Kelly v. North Shore-Long Island Health Sys., No.

13-CV-1284, 2014 WL 2863020 (E.D.N.Y. Jun. 22, 2014).

Plaintiff

is a registered nurse who worked for LIJ as a part-time “field
registered nurse” from February 2008 until her resignation on
August 17, 2011.

(Am. Compl., Docket Entry 16, ¶¶ 8, 23, 117.)

Plaintiff also worked as a registered nurse for Nassau Health Care
Corporation (“NHCC”).

(Am. Compl. ¶¶ 20, 37.)

In March 2011, Plaintiff submitted retirement documents
to NHCC.

(Am. Compl. ¶ 25.)

On March 26, 2011, Plaintiff fell

and injured her back while on vacation in Mexico.

(Am. Compl.

¶ 26.) Plaintiff exacerbated the injury when she helped her friend
and another individual out of the water after a jet-ski accident.
(Am. Compl. ¶¶ 27, 28.)

Plaintiff alleges that she was in a

significant amount of pain and purchased morphine, which is legal
to purchase and use in Mexico without a prescription.

(Am. Compl.

¶ 28.)

The following facts are taken from Plaintiff’s Amended
Complaint and are presumed to be true for the purposes of this
Memorandum and Order.
1

2

In April, 2011, NHCC subjected Plaintiff to a random
drug test that returned a positive result for morphine sulfate.
(Am. Compl. ¶¶ 30-31.)

NHCC then reported Plaintiff to the Office

of Professional Discipline (“OPD”).

(Am. Compl. ¶ 32.)

Plaintiff

spoke with an investigator from OPD in late April 2011.
Compl. ¶ 51.)

(Am.

OPD did not impose sanctions against Plaintiff and

“found that she was not a threat to patients and could continue to
see and treat patients.” (Am. Compl. ¶ 52.) Plaintiff was advised
that OPD “could not inform LIJ of the circumstances surrounding
the investigation because they were not the reporting party or the
party

involved

in

the

investigation.”

(Am.

Compl.

Plaintiff retired from NHCC in or about April 2011.

¶

53.)

(Am. Compl.

¶ 37.)
Plaintiff

is

a

recovering

alcoholic

who

consumed

significant amounts of alcohol when she was off-duty and not
scheduled to work the following day.
Plaintiff’s

alcoholism

substantially

(Am. Compl. ¶¶ 56-57.)
limited

her

ability

to

perform activities like walking, talking, eating, and standing for
extended periods of time.

(Am. Compl. ¶ 59.)

Plaintiff admitted

she was an alcoholic, joined a support group sponsored by the
Statewide

Peer

Assistance

for

Nurses

program,

Alcoholics Anonymous meetings three times per week.
¶¶ 39, 62.)

and

attended

(Am. Compl.

Additionally, “[t]o address the positive test result

and address any potential or perceived substance abuse issues,
3

[Plaintiff] voluntarily entered the Employee Assistance Program at
NHCC and the Kenneth Peters Rehabilitation Center in Syosset.”
(Am. Compl. ¶ 36.)

Plaintiff also voluntarily applied for a spot

in the Professional Assistance Program (“PAP”), a program run by
the

State

of

New

York

that

“assists

professionals

who

have

substance abuse problems but who have not harmed patients or
clients.”

(Compl. ¶¶ 39-41.)

Participants in PAP voluntarily

surrender their licenses during their treatment instead of facing
professional misconduct charges.

(Am. Compl. ¶¶ 41, 44.)

Plaintiff alleges that in or about April 2011, she
advised her LIJ Nursing Supervisor, Diane Asquino (“Asquino”), of
her

positive

drug

test

obligation to do so.”

results

“[t]hough

(Am. Compl. ¶ 33.)

she

was

under

no

Plaintiff explained why

her drug test was positive and “that she was taking all necessary
steps to successfully continue her career as a Registered Nurse.”
(Am. Compl. ¶ 34.) Plaintiff also advised Asquino that she was
undergoing treatment for substance abuse, which Asquino reported
to the Director of Nursing, Barbara Maidhoff (“Maidhoff”).
Compl. ¶¶ 48-49.)

(Am.

Plaintiff believes that Maidhoff reported this

information to Maria Caravello (“Caravello”), who worked in LIJ’s
human resources department.

(Am. Compl. ¶ 50.)2

The Court notes that the Amended Complaint refers to an LIJ
human resources employee as both “Maria Covello” and “Maria
Caravello.” The Court assumes Plaintiff is referring to one
2

4

In or about May 2011, Plaintiff began speaking with an
assigned PAP case manager, Bonnie Lochner (“Lochner”), regarding
the requirements for her participation in the program. (Am. Compl.
¶ 63.) Lochner advised that Plaintiff needed to be sober for three
months, at which time PAP would need Plaintiff’s job description
and LIJ’s “policy on handling narcotics.”

(Am. Compl. ¶ 64.)

On

or about June 23, 2011, after three months of sobriety, Plaintiff
spoke with Maidhoff to request a copy of her job description and
LIJ’s narcotics policy.

(Am. Compl. ¶ 65.)

Maidhoff requested

that Lochner e-mail her directly to obtain that information.
Compl. ¶ 66.)

(Am.

Plaintiff advised Lochner of Maidhoff’s request and

Lochner subsequently contacted Maidhoff.

(Am. Compl. ¶ 67.)

Plaintiff indicated to her supervisors that she would be meeting
with PAP to determine whether she would be accepted into the
program.

(Am. Compl. ¶ 68.)
From

continued

to

April
work

2011
for

through

LIJ

and

July

1,

interacted

2011,

Plaintiff

with

patients,

administered medication, and performed her duties.
¶ 54.)

(Am. Compl.

No complaints were made with respect to Plaintiff’s

performance from April through July 2011.

(Am. Compl. ¶ 55.)

On or about June 29, 2011, Caravello inquired about
Plaintiff’s

availability

for

a

meeting

with

LIJ’s

Associate

individual. For east of reference, the Court will refer to this
individual as “Maria Caravello” throughout.
5

Executive

Director

of

Human

Resources,

Robert

Sabatino

(“Sabatino”), to “discuss and learn more about the PAP program.”
(Am.

Compl.

¶¶

69,

72.)

Plaintiff

asked

if

she

should

be

represented during the meeting and Sabatino advised that it would
just be a “friendly chat.”

(Am. Compl. ¶¶ 70-71.)

2011, Plaintiff met with Caravello and Sabatino.
¶ 73.)

On July 1,
(Am. Compl.

Plaintiff alleges that she explained the events that

occurred in Mexico and also explained that she was a recovering
alcoholic.

(Am. Compl. ¶¶ 74-76.)

Caravello called Plaintiff

approximately two hours later and informed her that she was being
placed on administrative leave and that “she could no longer see
her patients because they were reassigned.”

(Am. Compl. ¶¶ 82-

83.)
In early July 2011, OPD completed its investigation of
Plaintiff’s failed drug test and “determined that there were no
concerns with her ability to care for and treat patients, and that
she

did

not

pose

a

risk

to

patients.”

(Am.

Compl.

¶ 84.)

Thereafter, on July 12, 2011, Plaintiff went to LIJ to speak with
Sabatino.

(Am. Compl. ¶¶ 85-86.)

Plaintiff asked Sabatino “what

the length of her administrative leave would be and why she was so
abruptly removed from her position.” (Am. Compl. ¶ 87.) According
to Plaintiff, Sabatino stated, “in sum and substance, that he was
not aware of [Plaintiff’s] ‘problem,’ referencing her addiction to
alcohol, prior to their July 1, 2011 meeting but [since he became
6

aware of it], he [has to] protect the public.”

(Am. Compl. ¶ 88.)

However, Plaintiff advised Sabatino that OPD had already concluded
that she was “not a threat to the public or her patients.”
Compl. ¶ 88.)
[Plaintiff]

That same day, Sabatino “confirmed via letter that
was

assigned

to

undetermined period of time.”
On

(Am.

July

13th,

administrative

leave

for

an

(Am. Compl. ¶ 91.)
Plaintiff

received

“accusatory”

correspondence from Sabatino stating that she consistently made
phone

calls

to

case

managers

in

an

attempt

(Am. Compl. ¶ 92.)

employment status.3

to

discuss

her

The letter also “stated

that if [Plaintiff] continued to make phone calls to Home Care
Case Managers in reference to her job status, other stricter
measures would have to be put in place.”

(Am. Compl. ¶ 93.)

Plaintiff never made phone calls to case managers to discuss her
employment status.

(Am. Compl. ¶ 94.)

On July 23, 2011, Plaintiff learned that she was accepted
into the PAP program and LIJ was notified.

(Am. Compl. ¶¶ 96-97.)

On July 27, 2011, Plaintiff telephoned Sabatino and inquired as to
why she was still on administrative leave.

(Am. Compl. ¶ 98.)

“[Plaintiff] explained that she felt she was being discriminated
against

because

she

was

a

recovering

alcoholic.

She

further

The Amended Complaint does not indicate the year of the July
13th correspondence, however, the Court assumes that Plaintiff
is referring to correspondence dated July 13, 2011. (See Am.
Compl. ¶ 92.)
3

7

explained that she would not let this stand.”

(Am. Compl. ¶ 98.)

Plaintiff also told Sabatino that she planned to “pursue this
further and file a complaint” as she did not understand why she
was “being treated or viewed as a ‘threat.’”

(Am. Compl. ¶ 99.)

Thereafter, Plaintiff spoke with Lochner, who advised Plaintiff
that she would speak with Sabatino about Plaintiff returning to
work.

(Am. Compl. ¶¶ 101-02).

Plaintiff did not receive any

response regarding her employment status.

(Am. Compl. ¶ 103.)

On August 11, 2011, Caravello asked Plaintiff to meet
with her and Sabatino to discuss a “Last Chance Agreement” that
LIJ was offering to Plaintiff (the “Last Chance Agreement”).
Compl. ¶ 106.)
“required

(Am.

Plaintiff alleges that the Last Chance Agreement

Plaintiff

to

acquiesce

to

its

terms

and

sign

the

Agreement within eight (8) days or it would result in her automatic
and immediate termination from her employment with LIJ.”
Compl. ¶ 107.)

(Am.

Plaintiff also alleges that the Last Chance

Agreement contained a “full waiver and release of any and all
claims

that

she

suspension (when
indefinitely).”

may
she

have
was

against
placed

LIJ
on

for

her

July

administrative

2011
leave

(Am. Compl. ¶ 110.)

Subsequently,

Plaintiff

spoke

with

Caravello

by

telephone and expressed her hesitation about attending a meeting
unrepresented.

(Am. Compl. ¶ 113.)

Plaintiff inquired “as to why

she was receiving a last chance Agreement in August when she
8

candidly came to [LIJ] in April of 2011 and disclosed her positive
test result from NHCC.”

(Am. Compl. ¶ 113.)

Plaintiff alleges

that she “felt compelled to choose between her job or upholding
her rights.”

(Am. Compl. ¶ 115.)

Ultimately, Plaintiff declined

to attend the meeting or execute the Last Chance Agreement and
instead involuntarily resigned on August 17, 2011.
¶¶ 114-118.)

Plaintiff

discharged” by LIJ.

alleges

that

she

was

(Am. Compl.

“constructively

(Am. Compl. ¶ 119.)

Plaintiff believes Lochner advised LIJ that her nursing
license “remained in effect and that she was able to treat patients
and administer medication.”

(Am. Compl. ¶ 122.)

However, the

Amended Complaint does not specify when Lochner allegedly shared
this information with LIJ.
II. Procedural Background
A.

Plaintiff’s Administrative Complaints
On

complaint
(“NYSDHR”)

August

with
and

the
the

8,

2011,

New

York

Equal

Plaintiff
State

dual

Division

Employment

filed
of

a

Human

Opportunity

pro

se

Rights

Commission

(“EEOC”) (hereinafter referred to as the “EEOC Complaint”).

(Am.

Compl. ¶ 105; Ex. H to Def.’s Decl., EEOC Compl., Docket Entry 208, at 8-17.)4

The EEOC Complaint alleges that Plaintiff was

discriminated against by LIJ on the basis of age, gender, and

For ease of reference, the Court will utilize the ECF
pagination in its citation to the EEOC Complaint.
4

9

disability.

(EEOC Compl. at 11.)

that

act

LIJ’s

of

The EEOC Complaint also states

discrimination

was

placing

Plaintiff

on

administrative leave for an indeterminate amount of time, and that
the most recent act of discrimination occurred on July 1, 2011
(EEOC Compl. at 9, 12.).
On November 8, 2011, Plaintiff retained counsel and
filed an amendment to her NYSDHR complaint (the “Second EEOC
Complaint”).

(Am. Compl. ¶ 120; Ex. J to Def.’s Decl., Sec. EEOC

Compl., Docket Entry 20-10.5)

Plaintiff alleges that her Second

EEOC Complaint is derived from the same facts as the EEOC Complaint
and only added that she felt that LIJ further discriminated against
her “because of her disability and in retaliation for complaining
to [NYSDHR] regarding her disparate treatment as compared to other
nurses who tested positive for substance abuse but did not make
complaints and were not given last chance agreements with a full
and

general

Complaint,

release.”
the

Second

(Am.

Compl.

EEOC

¶

121.)

Complaint

Like

alleged

the

EEOC

that

LIJ

discriminated against Plaintiff on the basis of age, gender, and
disability.

(Sec. EEOC Compl. at 11.)

However, the Second EEOC

Complaint included a new allegation that LIJ retaliated against
Plaintiff for her having filed the EEOC Complaint.

(Sec. EEOC

Compl. at 11.)

For east of reference, the Court will utilize the ECF
pagination in its citation to the Second Amended Complaint.
5

10

On

February

3,

2012,

NYSDHR

dismissed

Plaintiff’s

initial EEOC Complaint for lack of probable cause, (Ex. K to Def.’s
Decl., Feb. 3, 2012 Decision, Docket Entry 20-11), and the EEOC
subsequently adopted the findings of the NYSDHR and issued a rightto-sue letter dated March 23, 2012, (Ex. L to Def.’s Decl.,
Mar. 23, 2012 EEOC Ltr., Docket Entry 20-12).

On September 12,

2012, the NYSDHR dismissed Plaintiff's second complaint for lack
of probable cause, (Ex. M to Def.’s Decl., Sept. 12, 2012 Decision,
Docket Entry 20-13), and the EEOC subsequently adopted the findings
of the NYSDHR and issued a right-to-sue letter dated December 12,
2012, (Ex. N to Def.’s Decl., Dec. 12, 2012 EEOC Ltr., Docket Entry
20-14).6
B.

First Motion to Dismiss
Plaintiff

asserting

claims

commenced

under

the

this

action

Americans

on

with

March

12,

Disabilities

2013,
Act

(“ADA”), Age Discrimination in Employment Act (“ADEA”), Title VII
of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 1983,
1985, 1986, and 1988, and New York State Executive Law § 290 et.
seq. (“NYS Human Rights Law”), as well as state law claims for

Plaintiff alleges that on April 26, 2012, she received a
determination of probable cause in connection with the Second
EEOC Complaint. (Am. Compl. ¶ 11.) However, on June 22, 2012,
LIJ made an application to re-open the probable cause
determination and NYSDHR ultimately reversed its finding of
probable cause. (Am. Compl. ¶¶ 12, 14.)
6

11

intentional infliction of emotional harm and negligent infliction
of emotional harm.

(See Compl., Docket Entry 1.)

On April 2, 2013, LIJ moved to dismiss the Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(1) and (b)(6)
(the “First Motion to Dismiss”).
7.)

(Def.’s First Mot., Docket Entry

In determining the First Motion to Dismiss, the Court noted

that Plaintiff “voluntarily withdr[ew] her claims under Title VII
[ ]; the [ADEA]; and 42 U.S.C. §§ 1983, 1985, 1986, and 1988.”
Kelly, 2014 WL 2863020, at *1, n.1.

The Court denied the branch

of LIJ’s motion seeking dismissal of Plaintiff’s ADA claims on
statute of limitations grounds.

Id. at *4-5.

The Complaint’s NYS

Human Rights Law claim and claims for intentional infliction of
emotional harm and negligent infliction of emotional harm were
dismissed with prejudice.
Plaintiff’s

ADA

Id. at *11.
cause

of

action

was

construed

as

asserting a claim for disability discrimination, hostile work
environment, and retaliation.

The Court dismissed Plaintiff’s

disability discrimination claim due to her failure to demonstrate
that she is disabled or that LIJ perceived her as being disabled.
Id.

at

*6.

Plaintiff’s

hostile

work

environment

claim

was

dismissed based on her failure to exhaust administrative remedies,
demonstrate that she is disabled or that LIJ perceived her as being
disabled, and plausibly plead that she was subjected to a hostile
work

environment.

Id.

at

*7.
12

Plaintiff’s

claim

that

LIJ

retaliated against her for filing the EEOC Complaint by offering
her the Last Chance Agreement was dismissed because “Plaintiff
d[id] not allege that LIJ was aware of Plaintiff’s complaint with
the NYSDHR before it offered the Last Chance Agreement.”

Id. at

*10.

While the Court held that “Plaintiff should be given one

final

opportunity

retaliation

claims

to

plead

under

her

the

disability

ADA,”

discrimination

Plaintiff’s

environment claim was dismissed with prejudice.
C.

hostile

and
work

Id. at *11.

Second Motion to Dismiss
On July 22, 2014, Plaintiff filed her Amended Complaint.

The Amended Complaint asserts a first cause of action for a
violation of the ADA (Am. Compl. ¶¶ 123-39) and a second cause of
action labeled “Count II-Violation of Title VII of the Civil Rights
Act of 1964, Section 704 Retaliation.”

(Am. Compl. ¶¶ 140-52.)

On September 4, 2014, LIJ moved to dismiss Plaintiff’s
Amended Complaint.

(Def.’s Mot.)

LIJ argues that Plaintiff’s ADA

discrimination claim must fail because: (1) the Amended Complaint
does

not

plausibly

administrative

leave

plead

that

because

of

Plaintiff
her

was

disability

placed
or

on

perceived

disability, and (2) LIJ’s offer of the Last Chance Agreement cannot
be considered a constructive discharge because (i) a constructive
discharge claim cannot stand in the absence of a hostile work
environment claim and (ii) the Last Chance Agreement was an attempt
to extend Plaintiff’s employment, not end it.
13

(Def.’s Br., Docket

Entry 21, at 7-11, 13-15.)

LIJ avers that it did not become aware

that Plaintiff was under investigation by PAP or that Plaintiff’s
nursing license was in jeopardy until June 2011, at which time it
“had

an

obligation

perspective,

to

to

take

(Def.’s Br. at 8, 10.)

its
action

patients,
with

from

a

respect

quality

to

this

of

care

employee.”

Moreover, Plaintiff’s attempt to infer

discriminatory animus from Sabatino’s statement that he was not
aware of her “problem” is speculative.

(Def.’s Br. at 10.)

LIJ also argues that Plaintiff’s retaliation claim must
fail because the Court did not permit Plaintiff to replead a Title
VII retaliation claim.

(Def.’s Br. at 16-17.)

To the extent that

the Court considers Plaintiff’s Title VII retaliation claim, LIJ
argues
Sabatino

that:
on

(1)
July

Plaintiff’s
27,

2011

is

alleged
not

a

informal
protected

complaint
activity;

to
and

(2) Plaintiff cannot demonstrate that Defendant was aware of her
EEOC Complaint when it offered her the Last Chance Agreement.
(Def.’s Br. 17-20.)

Additionally, LIJ alleges that Plaintiff has

not exhausted her administrative remedies with respect to her
alleged informal complaint to Sabatino.
Plaintiff

opposes

LIJ’s

(Def.’s Br. at 21-25.)

motion

and

argues

that

Amended Complaint states a claim for ADA discrimination.
Br., Docket Entry 24, at 4.)

the

(Pl.’s

Plaintiff alleges that PAP did not

“investigate” her; OPD conducted an investigation to ensure that
she did not pose a threat to the public.
14

(Pl.’s Br. at 5-6.)

While LIJ alleges that it was unaware of OPD’s investigation until
late June 2011, in fact, “when [Plaintiff] informed [LIJ] that she
was

taking

all

necessary

steps

to

continue

her

career

as

a

Registered Nurse it was implicit that she would join PAP and ensure
that she was able to continue working as a Nurse with LIJ.”
Br. at 5-6.)

(Pl.’s

Moreover, OPD had concluded its investigation when

Plaintiff met with Sabatino in July 2011 and it was only after
Sabatino became aware of Plaintiff’s issues with alcohol that he
placed her on administrative leave.

(Pl.’s Br. at 6.)

Plaintiff

further alleges that she was constructively discharged because she
was “forced to choose between being terminated or being subjected
to submitting to a last chance agreement to waive any and all her
rights

for

the

unfair

subjected to by LIJ.”

and

discriminatory

treatment

she

was

(Pl.’s Br. at 7.)

Plaintiff also argues that her retaliation claim is
asserted under the ADA and her reference to Title VII is a
typographical error.

(Pl.’s Br. at 9, n.1.)

Plaintiff avers that

her July 27, 2011 conversation with Sabatino is a protected
activity and that LIJ retaliated against her for making this
informal complaint by offering a Last Chance Agreement that would
terminate her employment if she did not sign it within eight days.
(Pl.’s Br. at 10-11; Am. Compl. ¶ 107.)

Plaintiff argues that she

has exhausted her administrative remedies with respect to her
retaliation

claim,

as

her

Second
15

EEOC

Complaint

contained

allegations

stemming

from

the

same

facts

as

her

first

EEOC

Complaint and “added that [Plaintiff] felt she was being further
discriminated against because of her perceived disability and in
retaliation for informing Sabatino that she would make a formal
complaint and then formally complaining to the to the NYS Division
of Human Rights regarding her disparate treatment . . . .”

(Pl.’s

Br. at 12-13.)
In its reply, LIJ alleges that it placed Plaintiff on
administrative leave after it became aware that she was being
investigated by OPD and “that there was the possibility that she
may not be allowed to continue practicing as a nurse.”
Reply Br., Docket Entry 26, at 3.)

(Def.’s

LIJ notes that Plaintiff’s

attempt to conflate the issues by alleging that LIJ’s argument is
undermined by its reference to “the OPD as the PAP” in its motion
is a “red herring” and that irrespective of the acronym used, LIJ’s
decision to place Plaintiff on administrative leave was solely the
result of it becoming aware the Plaintiff was under investigation
and might not be able to continue her employment as a nurse.
(Def.’s Reply Br. at 3, n.4.)

Moreover, the Amended Complaint

does not plausibly assert that LIJ knew Plaintiff was being
investigated by OPD in April 2011 or that LIJ knew OPD had
concluded

its

investigation

administrative leave.

when

it

placed

(Def.’s Reply Br. at 4.)

16

Plaintiff

on

DISCUSSION
Preliminarily, the Court notes that its prior Order only
provided

Plaintiff

with

leave

to

replead

discrimination and retaliation claims.

her

ADA

disability

Kelly, 2014 WL 2863020, at

*11. Plaintiff avers that her reference to Title VII in her second
cause of action is a typographical error and the Court will
construe Plaintiff’s second cause of action as asserting a claim
for retaliation under the ADA.

(Pl.’s Br. at 9, n.1.)

The Court

declines to construe the Amended Complaint as asserting claims for
failure to accommodate or disparate treatment under the ADA in
light of Plaintiff’s limited permission to replead.

(See Def.’s

Br. at 7, n.5; 10, n.7 (arguing that to the extent Plaintiff
asserts claims for failure to accommodate or disparate treatment,
those claims are not viable).)
I. Legal Standard
To withstand a motion to dismiss, a complaint must
contain factual allegations that “‘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 Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955,
1974, 167 L. Ed. 2d 929 (2007)).

This plausibility standard is

not a “probability requirement” and requires “more than a sheer
possibility that a defendant has acted unlawfully.”

Id. (internal

quotation

that

marks

and

citation
17

omitted).

To

regard,

“[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”

Id.

The Court’s plausibility determination is a “context-specific task
that

requires

the

reviewing

experience and common sense.”

court

to

draw

on

its

judicial

Harris v. Mills, 572 F.3d 66, 72

(2d Cir. 2009) (internal quotation marks and citation omitted).
A.

Rule 12(b)(1)
“A case is properly dismissed for lack of subject matter

jurisdiction under Rule 12(b)(1) when the district court lacks the
statutory or constitutional power to adjudicate it.”
United States, 201 F.3d 110, 113 (2d Cir. 2000).

Makarova v.

The plaintiff

bears the burden of demonstrating by a preponderance of the
evidence

that

resolving

a

jurisdiction,
pleadings.”

subject
motion
the

matter

to

Court

jurisdiction

dismiss
“may

for

lack

consider

exists.
of

Id.

subject

evidence

In

matter

outside

the

See Morrison v. Nat’l Austl. Bank, Ltd., 547 F.3d

167, 170 (2d Cir. 2008), aff’d, 561 U.S. 247, 130 S. Ct. 2869,
177 L. Ed. 2d 535 (2010) (citation omitted).
B.

Rule 12(b)(6)
Generally, the Court’s consideration of a Rule 12(b)(6)

motion to dismiss is “limited to consideration of the Complaint
itself.”

Dechberry v. N.Y. City Fire Dep’t, --- F. Supp. 3d ---,

2015 WL 4878460, at *1 (E.D.N.Y. Aug. 14, 2015) (internal quotation
marks and citation omitted).

However, “[a] complaint is deemed to
18

include any written instrument attached to it as an exhibit,
materials incorporated in it by reference, and documents that,
although

not

complaint.”

incorporated

by

reference,

are

integral

to

the

Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004)

(internal quotation marks and citations omitted.)

See also FED.

R. CIV. P. Rule 10(c) (“A copy of a written instrument that is an
exhibit to a pleading is a part of the pleading for all purposes.”)
If

the

Court

considers

matters

outside

of

the

complaint

in

connection with a Rule 12(b)(6) motion, “the motion must be treated
as one for summary judgment under Rule 56 . . . [and] [a]ll parties
must be given a reasonable opportunity to present all the material
that is pertinent to the motion.”

FED. R. CIV. P. Rule 12(d).

In support of its motion to dismiss, LIJ annexes exhibits
that include a document prepared by Caravello and an email from
Lochner to Maidhoff dated June 23, 2011 (Ex. E); a letter from
Sabatino to Plaintiff dated July 13, 2011 (Ex. F); PAP’s letter to
Plaintiff dated July 25, 2011 (Ex. G); and Plaintiff’s August 17,
2011 resignation letter (Ex. I).

(Ex. E-G and I to Def.’s Decl.,

Docket Entries 20-5, 20-6, 20-7, 20-9.)

The Court finds that

Sabatino’s July 13, 2011 letter is incorporated by reference in
the Amended Complaint based on Plaintiff’s specific allegations
regarding this correspondence; accordingly, it will be considered
in connection with the determination of Defendant’s Rule 12(b)(6)
motion. (See Am. Compl. ¶¶ 92-94; Ex. F. to Def.’s Decl.) However,
19

Defendant’s previously noted Exhibits F, G, and I are neither
integral to the Complaint nor incorporated by reference and they
will not be considered.
C.

ADA Discrimination and Retaliation Claims
Discrimination and retaliation claims under the ADA are

analyzed using the McDonnell Douglas burden shifting framework.
Rodriguez v. Verizon Telecom, No. 13-CV-6969, 2014 WL 6807834, at
*2 (S.D.N.Y. Dec. 3, 2014).

Pursuant to this framework, the

plaintiff bears the initial burden of demonstrating a prima facie
discrimination or retaliation case.
the

burden

of

establishing

reason for its actions.”

a

Id.

The defendant then bears

“legitimate,

Id.

non-discriminatory

(citation omitted).

If the

defendant makes such a showing, the burden shifts back to the
plaintiff to establish that the defendant’s explanation is merely
pretextual.

Id.

However, at the pleading stage, a Complaint asserting
discrimination claims “need not allege facts establishing each
element of a prima facie case of discrimination to survive a motion
to

dismiss.”

Powell

v.

Dep’t

of

Educ.

of

City

of

N.Y.,

No. 14-CV-2363, 2015 WL 5772211, at *5 (E.D.N.Y. Sept. 30, 2015)
(internal quotation marks and citation omitted).

Rather, the

plaintiff need only allege a plausible claim upon which relief may
be granted.

Id.

(noting

lenient

the

See also Rodriguez, 2014 WL 6807834, at *6
pleading

requirements
20

in

discrimination

cases).

With respect to employment discrimination claims, the

plaintiff must plausibly assert that “‘the employer took adverse
action against her at least in part for a discriminatory reason’
and plead facts that either directly show discrimination or give
rise to a plausible inference of discrimination.”

Powell, 2015 WL

5772211 at *5 (quoting Vega v. Hempstead Union Free Sch. Dist.,
No. 14-CV-2265, 2015 WL 5127519, at *10 (2d Cir. Sept. 2, 2015)).
Additionally, on a motion to dismiss courts consider the prima
facie

elements

of

a

discrimination

or

retaliation

claim

to

determine whether the complaint sufficiently alleges facts that,
if true, provide the defendant with “fair notice of Plaintiff’s
claim and the grounds on which it rests.”

Rodriguez, 2014 WL

6807834, at *3 (internal quotation marks and citation omitted).
II.

ADA Disability Discrimination Claim
The ADA prohibits discrimination against a “qualified

individual on the basis of disability” in the “terms, conditions,
and privileges of employment.”

42 U.S.C. § 12112(a).

To state a

claim for discrimination under the ADA, a plaintiff must allege
that: “(1) the defendant is covered by the ADA; (2) plaintiff
suffers from or is regarded as suffering from a disability within
the meaning of the ADA; (3) plaintiff was qualified to perform the
essential

functions

of

the

job,

with

or

without

reasonable

accommodation; and (4) plaintiff suffered an adverse employment
action

because

of

[her]

disability
21

or

perceived

disability.”

Capobianco v. City of N.Y., 422 F.3d 47, 56 (2d Cir. 2005)
(citation omitted).

While discriminatory intent may be inferred

based on the totality of the circumstances, the plaintiff “‘cannot
rely solely on conclusory allegations of discrimination without
any concrete evidence to support her claims.’”

Sherman v. Cty. of

Suffolk, 71 F. Supp. 3d 332, 347 (E.D.N.Y. 2014) (quoting Kaufman
v. Columbia Mem’l Hosp., 2 F. Supp. 3d 265, 278 (N.D.N.Y. 2014)).
An “adverse employment action” is defined as a change in
the

terms

adverse.”

and

conditions

of

employment

that

is

“materially

Caskey v. Cty. of Ontario, 560 F. App’x 57, 59 (2d Cir.

2014) (internal quotation marks and citations omitted).

See also

Sherman, 71 F. Supp. 3d at 344 (“A materially adverse change is a
change in working conditions that is more disruptive than a mere
inconvenience

or

an

alteration

of

job

responsibilities.”)

(internal quotation marks and citation omitted).
adverse

employment

actions

include

a

Examples of

termination,

demotion

evidenced by a wage or salary decrease, a “less distinguished
title,”

material

reduction

of

benefits,

or

a

significant

diminishing of the employee’s material responsibilities.

Id.

However, an individual’s “bruised ego,” reassignment to a position
that is more inconvenient, or demotion that does not include a
change in responsibilities, benefits, compensation, or prestige do
not constitute material adverse employment actions.

22

Hong Yin v.

North Shore LIJ Health Sys., 20 F. Supp. 3d 359, 373 (E.D.N.Y.
2014).
The Court construes the Amended Complaint as asserting
an ADA discrimination claim based on two alleged material adverse
employment

actions:

(1)

Defendant

placing

Plaintiff

on

administrative leave; and (2) Defendant’s alleged constructive
discharge of Plaintiff by offering her the Last Chance Agreement.
LIJ does not argue that it is not covered by the ADA, Plaintiff
does not suffer from a disability, Plaintiff was not qualified to
perform her job, or that Plaintiff’s administrative leave was not
an adverse employment action.

Instead, LIJ asserts that Plaintiff

fails to plausibly plead that she was placed on administrative
leave “due to her disability or perceived disability” and that
Plaintiff’s claim of constructive discharge fails in the absence
of a hostile work environment.
A.

(Def.’s Br. at 8, 11-12.)

Administrative Leave
Whether an ADA plaintiff is required to demonstrate that

the subject disability discrimination was a “but-for cause” of the
defendant’s adverse employment action is an open question in the
Second Circuit.

Vale v. Great Neck Water Pollution Control Dist.,

80 F. Supp. 3d 426, 436-37 (E.D.N.Y. 2015).

Compare Parker v.

Columbia Pictures Indus., 204 F.3d 326, 337 (2d Cir. 2000) (Holding
that

an

ADA

plaintiff

is

only

required

to

establish

that

“disability played a motivating role in the [adverse employment]
23

decision.”) with Gross v. FBL Fin. Servs. Inc., 557 U.S. 167, 17778, 129 S. Ct. 2343, 2351, 174 L. Ed. 2d 119 (2009) (Holding that
an ADEA disparate-treatment plaintiff must demonstrate “that age
was the ‘but-for’ cause of the challenged employer decision.”) and
Univ. of Tex. SW Med. Ctr. v. Nassar, --- U.S. ----, 133 S. Ct.
2517, 2534, 186 L. Ed. 2d 503 (2013) (Holding that a plaintiff
asserting a Title VII retaliation claim must establish “that his
or her protected activity was a but-for cause of the alleged
adverse action by the employer.”).

See also Sherman, 71 F. Supp.

3d at 347-49 (discussing the “open question” of the causation
standard for ADA discrimination claims in the Second Circuit and
noting that other circuit courts have applied a “but-for” standard
to ADA claims). But see Baron v. Advanced Asset and Property Mgmt.
Solutions, LLC, 15 F. Supp. 3d 274, 280, n.2 (E.D.N.Y. 2014)
(Declining to extend Gross to ADA actions absent Second Circuit
guidance and applying the “motivating factor” standard.).
The Court need not determine the appropriate causation
standard for ADA discrimination claims as Plaintiff has alleged
sufficient facts to plead that she was placed on administrative
leave because of her disability under either the “motivating
factor” or “but-for” standard.

The Amended Complaint alleges that

on July 1, 2011, Plaintiff met with Sabatino and Caravello and
explained: (1) the events in Mexico that resulted in her testing
positive for morphine; (2) that she was a recovering alcoholic and
24

was involved in several programs, including Alcoholics Anonymous
and the Kenneth Peters Rehabilitation Center; and (3) that she had
been sober for three months and was qualified to participate in
the PAP program.

(Am. Compl. ¶¶ 73-79.)

Approximately two hours

after that meeting, Caravello called Plaintiff and advised her
that she was on administrative leave “until further notice.”
Compl. ¶ 82.)

(Am.

Here, the temporal proximity of Plaintiff being

placed on administrative leave within approximately two hours of
advising Sabatino that she was a recovering alcoholic raises a
plausible inference of discrimination.

Vale, 80 F. Supp. 3d at

437

raise

(Temporal

proximity

suffices

to

an

inference

of

discrimination and state a plausible employment discrimination
claim.).

Accord Baron 15 F. Supp. 3d at 283.
LIJ argues that it placed Plaintiff on administrative

leave as a result of her inconsistent statements regarding the
circumstances surrounding her injury in Mexico and the fact that
she was under investigation and “her nursing license was in
jeopardy.”

(Def.’s Br. at 9.)

LIJ cites to Sabatino’s July 13,

2011 letter to Plaintiff, which states, in relevant part: “based
on the information you voluntarily shared with us during the
July 1, meeting, a decision was made to place you on Administrative
Leave

effective

immediately

pending

further

investigation

(including, without limitation, receipt of further information
from [OPD] concerning the status of your ability to practice as a
25

Home Care Nurse).”
correspondence--which

(Ex. F to Def.’s Decl.)
vaguely

states

that

However, this

Plaintiff

shared

information without specifying the particular information that
informed

LIJ’s

decision

to

place

Plaintiff

on

administrative

leave--does not conclusively establish that Plaintiff was placed
on administrative leave because her nursing license was in jeopardy
and further fact discovery is warranted on this issue.
While the Court is not persuaded by Plaintiff’s argument
that LIJ was aware of the OPD investigation as early as April 2011
because such information was “implicit” when Plaintiff informed
LIJ that she was “taking all necessary steps to continue her career
as a Registered Nurse,” the Amended Complaint indicates that
Plaintiff remained on indefinite administrative leave after she
advised Sabatino on July 12, 2011 that OPD had concluded that she
did not pose any patient care concerns.
Compl. ¶¶ 34, 85, 88, 91.)
asserts

that

when

(Pl.’s Br. at 5-6; Am.

Additionally, the Amended Complaint

Plaintiff

asked

Sabatino

how

long

her

administrative leave would be and why she was “abruptly” removed
from her position, Sabatino replied, “in sum and substance, that
he was not aware of [Plaintiff’s] ‘problem,’ referencing her
addition to alcohol, prior to their July 1, 2011 meeting but now
that he is, he must protect the public.”

(Am. Compl. ¶¶ 87, 88.)

Although Defendant argues that Sabatino’s alleged use of the word
“problem” is a reference to the pending investigation and potential
26

loss of Plaintiff’s nursing license, Plaintiff’s allegation that
Sabtino was referring to her alcoholism suffices to plausibly plead
discriminatory intent.

(Def.’s Br. at 10.)

Accordingly, the branch of Defendant’s motion seeking
the dismissal of Plaintiff’s ADA discrimination claim regarding
her placement on administrative leave is DENIED.
B.

Constructive Discharge
A constructive discharge takes place “when the employer,

rather than acting directly, deliberately makes an employee’s
working conditions so intolerable that the employee is forced into
an involuntary resignation.”
(internal

quotation

marks

Caskey, 560 F. App’x at 58-59

and

citation

omitted).

“Working

conditions are sufficiently intolerable when they are so difficult
or unpleasant that a reasonable person in the employee’s shoes
would

have

felt

compelled

to

resign.”

Giambattista

v.

Am.

Airlines, Inc., 5 F. Supp. 3d 284, 292 (E.D.N.Y. 2014) (internal
quotation marks and citation omitted) (Holding that plaintiff
failed to demonstrate that a “constructive suspension” constituted
an adverse employment action under the ADA and NYSHRL where the
complaint

did

defendant

that

intolerable.).
is

high

and

constitute

not

plausibly

rendered

allege

the

specific

plaintiff’s

conduct

working

by

the

conditions

The standard to establish a constructive discharge
requires

that

“‘something

the

employer’s

beyond
27

mere

deliberate
negligence

action
or

ineffectiveness.’”

Adams v. Festival Fun Parks, LLC, 560 F. App’x

47, 49-50 (2d Cir. 2014) (quoting Whidbee v. Garzarelli Food
Specialties, Inc., 223 F.3d 62, 74 (2d Cir. 2000)).
This

District

has

held

that

an

ADA

constructive

discharge claim must fail where the plaintiff does not establish
a hostile work environment claim.
374.

Hong Yin, 20 F. Supp. 3d at

See also Murphy v. BeavEx, Inc., 544 F. Supp. 2d 139, 153-

54 (D. Conn. 2008) (Holding that “[plaintiff] has not brought forth
sufficient evidence to support a hostile work environment claim.
Therefore any allegation of a constructive discharge must also
fail.”).

Cf. O’Neal v. State Univ. of N.Y., No. 01-CV-7802, 2006

WL 3246935, at *12 (E.D.N.Y. Nov. 8, 2006) (Noting, in the context
of a gender discrimination claim, that “constructive discharge is
a ‘worst case’ harassment scenario, a hostile working environment
‘ratcheted up to the breaking point,’” and holding that plaintiff’s
constructive discharge claim must fail based on her failure to
demonstrate a hostile work environment.) (quoting Penn. State
Police v. Suders, 542 U.S. 129, 147, 124 S. Ct. 2342, 2355, 159 L.
Ed. 2d 204 (2004)).
This Court has already dismissed Plaintiff’s hostile
work

environment

claim

with

prejudice

constructive discharge claim must fail.

and,

accordingly,

her

See Kelly, 2014 WL

2863020, at *11; Hong Yin, 20 F. Supp. 3d at 374.

In any event,

the Amended Complaint does not plausibly allege that Plaintiff’s
28

working conditions were so intolerable that a reasonable person
would have felt compelled to resign.
59.

Caskey, 560 F. App’x at 58-

Accordingly, the branch of Defendant’s motion seeking the

dismissal of Plaintiff’s ADA discrimination claim regarding her
alleged constructive discharge is GRANTED.
III.

ADA Retaliation Claim
The Court construes the Amended Complaint as setting

forth

two

bases

retaliated

for

against

an

ADA

Plaintiff

retaliation
for

claim:

statements

(1)

made

that

LIJ

during

her

July 27, 2011 phone call with Sabatino; and (2) that LIJ retaliated
against Plaintiff for filing her EEOC Complaint.
A.

July 27, 2011 Complaint
Defendant argues that the Court lacks subject matter

jurisdiction with respect to Plaintiff’s allegations regarding her
July 27, 2011 telephone call with Sabatino (the “July 27th Call”)
based on her failure to exhaust administrative remedies.
Br. at 21.)

(Def.’s

The Court agrees.

The ADA requires that a plaintiff exhaust all available
administrative remedies before filing an employment discrimination
action.

Manello v. Nationwide Mut. Ins. Co., No. 11-CV-0243, 2012

WL 3861236, at *8 (E.D.N.Y. Sept. 4, 2012).

Claims that were not

alleged in an EEOC charge may only be pursued in a federal action
where they are “reasonably related” to the claims filed with the
EEOC.

Id. at *9 (internal quotation marks and citation omitted).
29

Particularly, the three types of “reasonably related” claims are:
“(1) 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.’”

Id. (quoting Terry v. Ashcroft, 336 F.3d

128, 151 (2d Cir. 2003) (alteration in original)).
The primary inquiry is whether the plaintiff’s EEOC
complaint

provided

that

agency

with

investigate discrimination on both bases.”

“adequate

notice

to

Ceslik v. Miller Ford,

Inc., 584 F. Supp. 2d 433, 441-42 (D. Conn. 2008) (internal
quotation marks and citation omitted) (Noting that “[o]ne could
not reasonably expect that an ADA claim concerning an asthmatic
condition or a sexual harassment claim under Title VII would give
notice

about

claims

discrimination.”).

concerning

all

disabilities

or

all

See also Hoffman v. Williamsville Sch. Dist.,

443 F. App’x, 647, 649 (2d Cir. 2011) (Holding, in the context of
a Title VII claim, that “[a]n allegation not set forth in an
administrative charge will be barred as unexhausted unless it is
reasonably related to the allegations in the charge.”); Williams
v. N.Y. City Housing Auth., 458 F.3d 67, 70 (2d Cir. 2006) (Stating
that the focus of an inquiry as to whether a claim is “reasonably
related” to an EEOC charge “should be on the factual allegations
30

made in the [EEOC] charge itself, describing the discriminatory
conduct about which a plaintiff is grieving.”) (internal quotation
marks and citation omitted; alteration in original).
As previously noted, the Amended Complaint alleges that
during the July 27th Call, Plaintiff told Sabatino that she felt
discriminated against because she was a recovering alcoholic and
that she planned to “pursue this further and file a complaint.”
(Am. Compl. ¶¶ 98-99.)

Plaintiff further alleges that Defendant

retaliated against her for making this informal complaint and for
making the EEOC Complaint by presenting her with the Last Chance
Agreement.

(Am. Compl. ¶¶ 146, 148.)
However, Plaintiff’s EEOC Complaint and Second EEOC

Complaint are silent with respect to the July 27th Call.
generally EEOC Compl.; Sec. EEOC Compl.)7

(See

The first EEOC Complaint

alleges that LIJ’s act of discrimination was placing Plaintiff on
leave for an indeterminate amount of time and that the most recent
act of discrimination occurred on July 1, 2011.

(EEOC Compl. at

9, 12.) The EEOC Complaint only asserts a claim for discrimination
and contains no allegations of retaliation by LIJ.
EEOC Compl.)

(See generally

The Second EEOC Complaint details, in relevant part,

The Court will consider the EEOC Complaint and Second EEOC
Complaint with respect to LIJ’s subject matter jurisdiction
arguments based on its discretion to look to evidence outside of
the pleadings on a Rule 12(b)(1) motion. See Morrison, 547 F.3d
at 170.
7

31

Plaintiff’s July 1, 2011 meeting with Sabatino and Caravello;
Plaintiff’s July 12, 2011 conversation with Sabatino where she
asked about the length of her administrative leave and Sabatino
indicated

that

he

was

not

previously

aware

“problem”; and Sabatino’s July 13, 2011 letter.
at 10-11.)

of

Plaintiff’s

(Sec. EEOC Compl.

The Second EEOC Complaint also alleges that on August

8, 2011, Plaintiff filed the EEOC Complaint; on August 11, 2011,
Caravello asked Plaintiff if she would meet with her and Sabatino
to sign the Last Chance Agreement; that Plaintiff refused to sign
the

agreement;

and

“[o]n

August

17,

2011

as

a

result

of

[Defendant]’s discriminatory and retaliatory treatment [Plaintiff]
felt compelled to resign from her employment with [Defendant],
which was tantamount to a constructive discharge.”

(Sec. EEOC

Compl. at 11.)
Although Plaintiff appears to argue that her allegations
regarding the July 27th Call relate to the Second EEOC Complaint
because that complaint “added that [Plaintiff] felt she was being
further discriminated against because of her perceived disability
and in retaliation for informing Sabatino that she would make a
formal complaint,” the Court is not persuaded as neither EEOC
complaint contains any allegation that Plaintiff informed Sabatino
of her intention to file a formal complaint.

(Pl.’s Br. at 12-

13.) As neither EEOC complaint contains allegations that Plaintiff
complained to LIJ that she felt discriminated against or that she
32

threatened to file a formal complaint, Plaintiff’s EEOC complaints
fail to provide the EEOC with adequate notice to investigate a
claim for retaliation in connection with the July 27th Call.
Accordingly,

the

branch

of

Defendant’s

motion

seeking

the

dismissal of Plaintiff’s claim for retaliation based on the July
27th Call is GRANTED.
B.

August 8, 2011 EEOC Complaint
This Court previously dismissed Plaintiff’s claim that

LIJ retaliated against her for filing the EEOC Complaint by
presenting her with the Last Chance Agreement because “Plaintiff
d[id] not allege that LIJ was aware of Plaintiff’s complaint with
the NYSDHR before it offered the Last Chance Agreement.”
2014 WL 2863020 at *10.

Kelly,

The Amended Complaint fails to remedy

this defect and does not allege that LIJ was aware of the EEOC
Complaint before it offered the Last Chance Agreement.
generally Am. Compl.)

(See

Accordingly, the branch of Defendant’s

motion seeking to dismiss Plaintiff’s retaliation claim regarding
the EEOC Complaint is GRANTED for the same reasons set forth in
the Court’s Memorandum and Order dated June 22, 2014.
IV.

Leave to Replead
Although the Court’s general practice is to grant leave

to amend the complaint when grating a motion to dismiss, “the
district court has the discretion to deny leave to amend where
there is no indication from a liberal reading of the complaint
33

that a valid claim might be stated.”

Hayden v. County of Nassau,

180 F.3d 42, 53 (2d Cir. 1999); Perri v. Bloomberg, No. 11-CV2646, 2012 WL 3307013, at *4 (E.D.N.Y. Aug. 13, 2012).

Plaintiff

has already been permitted one opportunity replead and the Court
finds

that

additional

discrimination

claim

leave

based

to

on

replead

constructive

Plaintiff’s
discharge

and

ADA
ADA

retaliation claim based on her filing the EEOC Complaint would be
futile.

As the Court does not possess subject matter jurisdiction

over Plaintiff’s ADA retaliation claim based on the July 27th Call,
that claim must be dismissed without prejudice.

See JetBlue

Airways Corp. v. CopyTele Inc., --- F. App’x ---, 2015 WL 6161774,
at *1 (2d Cir. Oct. 21, 2015) (“‘Article III deprives federal
courts of the power to dismiss a case with prejudice where federal
subject matter jurisdiction does not exist.’”) (quoting Hernandez
v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999)).
CONCLUSION
For the foregoing reasons, Defendant’s motion is GRANTED
IN

PART

and

DENIED

IN

PART.

Plaintiff’s

claim

for

ADA

discrimination based on constructive discharge is DISMISSED WITH
PREJUDICE.

Plaintiff’s claims for ADA retaliation based on her

filing

the

of

EEOC

Complaint

is

DISMISSED

WITH

PREJUDICE.

Plaintiff’s claim for ADA retaliation based on the July 27th Call
is

DISMISSED

jurisdiction.

WITHOUT

PREJUDICE

Plaintiff’s

for

lack

remaining
34

of

claim

subject
is

matter

for

ADA

discrimination based on Defendant placing her on administrative
leave.
SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

January
15 , 2016
Central Islip, New York

35