Maack v. Wyckoff Heights Medical Center

Filing 26

OPINION AND ORDER re: 10 MOTION to Dismiss Complaint filed by Wyckoff Heights Medical Center, 14 MOTION to Vacate Arbitration filed by Dorota Von Maack. For the foregoing reasons, Defendant's motion to dismiss is GRANTED and Plaintiff's motion to vacate the arbitration award is DENIED. Plaintiff is granted leave to replead her EPA, FMLA, ERISA, and section 1981 claims, including allegations supporting tolling the limitations periods for the first three of these claims. Plaintiff's Amended Complaint shall be filed, if at all, on or before July 21, 2016. The Clerk of the Court is respectfully directed to terminate the motions, Doc. 10 and 14, and to mail a copy of this Opinion and Order to Plaintiff. It is SO ORDERED. (As further set forth in this Order.) (Amended Pleadings due by 7/21/2016.) (Signed by Judge Edgardo Ramos on 6/21/2016) (kko)

Defendant Wyckoff Heights Medical Center, a healthcare facility located in Brooklyn. Id. at 1 &
Ex. 6.2 At all relevant times during her employment, Plaintiff’s supervisor was Joseph Rumore,
Wyckoff’s Pharmacy Director (“Director Rumore”). Id. at 5. During her employment, Plaintiff
was a member of a union, 1199SEIU United Healthcare Workers East (“1199”). Id. at 10 ¶ 4.
The terms and conditions of her employment were governed by a collective bargaining
agreement (“CBA”) between Wyckoff and 1199. Id., Ex. 4.
Plaintiff alleges that while she worked at Wyckoff, she was subjected to a number of
discriminatory practices based on her race, national origin, immigration status, sex, disability,
religion, and age. Id. at 7. Chief among her discrimination claims in this suit is that she was
treated less favorably than other employees because she is an immigrant from Poland and a
naturalized, as opposed to native born, U.S. citizen. See, e.g., id. at 7, 49–50. Plaintiff
essentially alleges that her workplace was divided between “favored” employees, like Americanborn pharmacists Larry Coppola and Maria Esposito, and “non-favored” employees, like herself.
Id. at 7.
Among other discriminatory acts, Plaintiff alleges that: she was subjected to
discriminatory shift scheduling, whereby she was scheduled to work five days per week while
favored pharmacists, including Coppola and Esposito, worked only four days per week, id. at 7
& Ex. 9; she was assigned more work than favored pharmacists and, unlike favored pharmacists,
was not permitted to ask pharmacy technicians for help, id. at 8–9 ¶ 3; she was subjected to
excessive discipline compared to favored employees, id. at 10–12 ¶¶ 5–6; and she was made to

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.
Eaves v. Designs for Fin., Inc., 785 F. Supp. 2d 229, 244 (S.D.N.Y. 2011); see also DiFolco v. MSNBC Cable
L.L.C., 622 F.3d 104, 111 (2d Cir. 2010).
2

Defendant did not raise a venue challenge in its motion to dismiss.

2

perform the least desirable assignments, which included making chemotherapy and intravenous
medications in a compounding room that she alleges did not meet industry safety standards, id. at
8 ¶ 2. Plaintiff alleges that working in the compounding room caused her to lose weight, to
frequently suffer colds, bronchitises, and pneumonias, and, later, to acquire three diseases that
affect her lungs—bronchiectasis, atelectasis, and chronic obstructive pulmonary disease
(“COPD”). Id. at 8 ¶ 2, 19–20 ¶¶ 29–31. 3 Plaintiff also alleges that Wyckoff owes her over
$30,000 in wages by the terms of the CBA. Id. at 10 ¶ 4. 4
Throughout her employment, Plaintiff complained to her supervisor, Wyckoff officials,
her union, and others regarding discriminatory treatment, issues of workplace safety, and
violations of the CBA. Id. at 15 ¶¶ 16–18. At some point, Defendant introduced a rotation
system to address some of the issues Plaintiff raised about shift scheduling and assignments, but
many of Plaintiff’s concerns had still not been addressed. Id. at 15 ¶ 17. Plaintiff alleges that
she and other employees became dissatisfied with the conditions at Wyckoff and with their union
representation, and on June 9, 2009, Plaintiff and her fellow pharmacists at Wyckoff signed a
petition, addressed to Wyckoff’s then-CEO, requesting immediate negotiations for a new
employment contract. Id. at 16 ¶ 19 & Ex. 17. Plaintiff delivered the petition in person. Id. at
16 ¶ 19.
Plaintiff alleges that Defendant retaliated against her for her complaints, particularly after
she delivered the June 9 petition. Id. One such incident occurred not long thereafter. Plaintiff

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Plaintiff’s health conditions are the subject of a workers’ compensation suit Plaintiff filed on August 5, 2011.
Compl. at 2 ¶ 1, 26 ¶ 46. The Workers’ Compensation Law Judge disallowed Plaintiff’s claim, and the Workers’
Compensation Board affirmed that determination on appeal. Id. at 2 ¶ 1. Plaintiff’s appeal to the Third Department
of the New York State Appellate Division is currently pending. Id.

4

Plaintiff’s unpaid wages are the subject of three suits Plaintiff filed against Defendant in New York City Small
Claims Court. Compl. at 3 ¶ 3. On November 12, 2015, after a trial, the Small Claims Court found in Plaintiff’s
favor, awarding her a total of $701.38. Reply Memorandum of Law in Support of Plaintiff’s Motion to Void the
Arbitration Award (Doc. 22) (“Pl.’s Reply Mem.”), Ex. K.

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alleges that on June 13, 2009, she became so sick from her exposure in the compounding room
that she had to be hospitalized. Id. at 16 ¶ 20. Plaintiff returned to work after four days with a
discharge note from NYU Medical Center, id., Ex. 18, but, according to Plaintiff, Director
Rumore refused to see the note and instead accused her of going on a ski vacation. Id. at 16 ¶ 20.
Plaintiff alleges that, in an act of retaliation, Director Rumore made her work alone in the
hospital without support from other personnel. Id. When Plaintiff reported the incident in the
pharmacy “communication book,” she was given a disciplinary notice and suspended for three
days. Id. at 16–17 ¶ 20. When she returned to work on July 21, Director Rumore ordered a
security guard to escort her off the premises, allegedly to further intimidate her. Id. at 17 ¶ 21.
Plaintiff complained about the incident to Wyckoff officials, including Wyckoff’s Human
Resources Director, Margaret Cornelius, and Compliance Officer, Claire Mullally, but to no
avail. Id. at 17–18 ¶¶ 21–26. Plaintiff also filed a grievance request with her union about the
incident, but the union declined to file a grievance on her behalf. Id. at 17 ¶ 21.
Plaintiff’s health continued to worsen in 2010. Id. at 19–21 ¶¶ 29–36. Plaintiff claims
that she informed Defendant about her health conditions and requested that she not be scheduled
to work in the compounding room for multiple days in a row. Id. at 19 ¶ 29. Although favored
employees were allegedly granted similar requests, Plaintiff’s requests were denied. Id.
According to Plaintiff, she was scheduled to work in the compounding room more frequently as
a result of her requests. Id. at 21 ¶ 36. Plaintiff also claims that she requested medical leaves,
which were denied. Id. at 20 ¶ 31. In late 2010, Plaintiff warned Director Rumore that if the
health and safety violations in the pharmacy were not remedied, she would notify federal and
state authorities. Id. at 20 ¶ 32.

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Plaintiff’s complaints persisted throughout 2011. At a February 10, 2011 union meeting,
Plaintiff and others raised a number of issues with union organizers, including complaints about
scheduling and wages, and the need for upgrades to bring the compounding room up to industry
standards. Id. at 21–22 ¶ 37. According to Plaintiff, the union did not file grievances on the
members’ behalf. Id. at 22 ¶ 37. In July, Plaintiff sent letters reiterating those complaints to
Wyckoff officials, but she received no response. Id. at 23–24 ¶¶ 39, 41. Also in July, Plaintiff
began the process of initiating a workers’ compensation claim. Id. at 24 ¶ 40.
Meanwhile, Plaintiff received more disciplinary notices, ultimately leading to her
termination. On July 5, 2011, Plaintiff received a disciplinary notice and five-day suspension
stemming from an incident occurring on May 28, 2011. Id. at 22 ¶ 38 & Ex. 27. On that date,
Director Rumore ordered Plaintiff and pharmacist Esposito to prepare TPN (a form of liquid
nutrition). Id. Plaintiff and Esposito refused the order, since it was not accompanied by a prior
official memorandum, in violation of Wyckoff’s policies and procedures. Id. According to
Plaintiff, Director Rumore only created the required memorandum after the fact, on June 6, 2011.
Id. Unlike Plaintiff, pharmacist Esposito was not disciplined for the incident. Id. at 23 ¶ 38.
Plaintiff maintains that she did nothing to deserve punishment, and that she only received the
disciplinary notice and suspension so that Director Rumore could have a reason to later fire her.
Id. at 22–23 ¶ 38.
The incident that led to Plaintiff’s ultimate dismissal took place a few weeks later, on
July 30, 2011. That day, the pharmacy was understaffed, and Plaintiff alleges that she was too
busy working to accept a package. Id. at 24–25 ¶ 42. Despite the fact that another pharmacist
and a technician were present, Plaintiff was blamed for refusing the delivery and for letting the
delivery driver wander the pharmacy unsupervised. Id. at 24–25 ¶ 42 & Ex. 34. Plaintiff alleges

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that Director Rumore intentionally understaffed the pharmacy that day. Id. at 24 ¶ 42. She also
claims that the technician on duty later admitted to setting Plaintiff up at the request of Director
Rumore. Id. at 28–29 ¶ 52.
Plaintiff complained about these disciplinary incidents before she was ultimately fired. A
grievance process was initiated, and a formal grievance meeting took place on August 2. Id. at
25 ¶ 44. Present were Director Rumore, Wyckoff Vice President Frances Heaney, Wyckoff
Labor Relations Manager Joseph Foti, and two 1199 organizers. Id. Plaintiff alleges that three
minutes into the meeting, when she began “to explain the whole situation, everybody in the room
got up and left [the] room without saying one word.” Id. at 25–26 ¶ 44.
Plaintiff also lodged a complaint against Director Rumore with Human Resources, and on
August 4, 2011, she met with Labor Relations Manager Foti to discuss her allegations of
harassment and unfair treatment. Id. at 26 ¶ 44 & Ex. 7. Plaintiff alleges that Foti ended the
meeting after only a few minutes. Id. at 26 ¶ 44.
On August 5, Plaintiff submitted a safety and health hazard notice to the Occupational
Safety and Health Administration (“OSHA”) about the conditions in the compounding room. Id.
at 27 ¶ 47. 5 The same day, she sent a letter to Wyckoff’s Compliance Officer, Claire Mullally,
regarding her medical condition and discrimination, id. at 26 ¶ 45, and her workers’
compensation claim was booked with the New York State Workers’ Compensation Board, id. at
26 ¶ 46.

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Among other things, Plaintiff’s notice indicated that because the “[c]hemotherapy compounding station and
intravenous medication preparation station are located in one room,” the “[r]isk of cross contamination is high;” that
“[t]he ventilation system in the room is old, rusty, and noisy and does not prevent employees from inhaling toxic
gases;” that “[t]he bio-waste containers are not hermetic and employees are exposed to their content;” and that
“[d]ust and vapors in the room agitated by ventilation make the room unsanitary.” Compl., Ex. 29.

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Almost one week later, on August 11, 2011, Plaintiff received a disciplinary notice for
the July 30 incident and was terminated for “continu[ing] to engage in . . . disruptive behavior.”
Id. at 28 ¶ 50 & Ex. 34. Wyckoff Vice President Frances Heaney allegedly told Plaintiff to
“finish [a] chemotherapy assignment and then to go home and never come back.” Id. at 28 ¶ 50.
Plaintiff claims that she was terminated in retaliation for filing the OSHA complaint and her
workers’ compensation claim. Id. Plaintiff also claims that the dismissal was done in violation
of the CBA, since no union representative was present when it occurred. Id. 6
B. Events Following Plaintiff’s Termination
The day after she was fired, Plaintiff filed a retaliatory termination complaint with
OSHA. Id. at 33 ¶ 64 & Ex. 51. Plaintiff alleges that in late August and September 2011, she
sent OSHA, per its request, over 100 pages showing that Defendant had violated OSHA and
retaliated against her. Id. at 33 ¶ 64, 38 ¶¶ 6–7. According to Plaintiff, OSHA did not inspect
the pharmacy, id. at 27 ¶ 47, or provide her with any updates on its investigation, id. at 33 ¶ 64. 7
Twenty days after her termination, on August 31, 2011, Plaintiff received a memorandum
from Labor Relations Manager Foti regarding her complaints of harassment and unfair treatment
against Director Rumore. Id. at 28 ¶ 51 & Ex. 7. Foti informed Plaintiff that an investigation
had been conducted, that he had been unable to substantiate Plaintiff’s claims, and that he had
therefore closed the matter. Id.
On January 10, 2012, Plaintiff’s union advised her to file for unemployment benefits. Id.
at 29 ¶ 53. Wyckoff challenged the benefits, claiming that Plaintiff was fired due to misconduct.

6

Plaintiff suggests that she might still be an employee of Defendant, since she never received discharge papers.
Compl. at 6, 28 ¶ 50. Yet this supposition cannot be squared with the fact that following her termination, Plaintiff
began receiving unemployment benefits. Id. at 29 ¶¶ 53–54.

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Plaintiff indicates that she intends to file a lawsuit against OSHA. Pl.’s Reply Mem. at 12.

7

Id. at 29 ¶ 54 & Ex. 35. On February 8, 2012, Plaintiff and Wyckoff representatives attended a
hearing before an Administrative Law Judge (“ALJ”). Id. at 29 ¶ 54. The ALJ upheld Plaintiff’s
entitlement to benefits in a decision filed March 8, 2012, determining that “there is insufficient
evidence to establish that [Plaintiff] engaged in misconduct for unemployment insurance
purposes.” Id. at 29 ¶ 54 & Ex. 35.
Pursuant to the CBA, 1199 grieved Plaintiff’s dismissal to arbitration, which took place
on April 11, 2012. Id. at 29 ¶ 55. Plaintiff alleges that 1199 breached its duty of fair
representation (“DFR”) by “collu[ding]” with Wyckoff to “rig[] the arbitration” against her. Id.,
Ex. 37 at 3–4, 15. Plaintiff alleges that, among other things, her union representative told her to
remain silent, refused to use exculpatory evidence she brought with her, 8 and turned away one of
her witnesses. Id., Ex. 37 at 5. At the hearing, the arbitrator heard testimony from Plaintiff and
from Steven Kaden, the other pharmacist on duty with Plaintiff on July 30, 2011. Id., Ex. 36 at
6–7. On April 30, 2012, the arbitrator issued his decision, concluding that, considering Kaden’s
testimony and Plaintiff’s prior disciplinary history, there was just cause for Plaintiff’s discharge.
Id., Ex. 36. 9
Plaintiff thereafter continued to lodge complaints with government agencies. In June
2012, Plaintiff filed a charge against Wyckoff with the National Labor Relations Board
(“NLRB”). Id. at 40–41 ¶ 17. The charge was dismissed as untimely, and the dismissal was
sustained on appeal. Id. at 40–42 ¶¶ 17–22; Declaration of Barbara E. Hoey, Esq. in Support of

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The arbitration award makes no mention of Plaintiff’s OSHA complaint or workers’ compensation claim. Compl.,
Ex. 36.

9

In light of the arbitrator’s decision, Wyckoff again challenged Plaintiff’s unemployment benefits. Compl. at 31
¶ 58. On June 28, 2013, the Appeal Board again ruled in Plaintiff’s favor, finding that Plaintiff’s conduct on July
30, 2011 amounted to “an isolated instance of poor judgment” that did not warrant a denial of unemployment
benefits. Id., Ex. 44 at 3.

8

Defendant’s Motion to Dismiss the Complaint (Doc. 12) (“Hoey Decl.”), Exs. M, N.10 On
August 7, 2013, Plaintiff filed a discrimination complaint against Wyckoff with the New York
State Division of Human Rights (“NYSDHR”). Compl. at 34 ¶ 65; Hoey Decl., Ex. S. On
November 8, 2013, the Equal Employment Opportunity Commission (“EEOC”) dismissed the
charge, after an attorney that Plaintiff retained to bring suit against Wyckoff indicated that she
wished to pursue the matter in State court. Compl. at 34 ¶ 65 & Ex. 2A. The same attorney also
withdrew Plaintiff’s OSHA complaint for retaliatory termination so that Plaintiff could “pursue
her federal, state and city claims within the requisite statute of limitations.” Id. at 33 ¶ 64 & Ex.
45A. Plaintiff alleges that her attorney closed these matters without providing her “any
explanation.” Id. at 33–34 ¶¶ 64–65.
C. Plaintiff Sues Wyckoff and 1199
On June 22, 2013, with the assistance of her attorney, Plaintiff filed a lawsuit against
Wyckoff in New York State Supreme Court. Id. at 32 ¶ 62. In that action, Plaintiff claimed only
that Wyckoff violated New York Labor Law § 741, a whistleblower law for certain healthcare
employees, by terminating her for complaining about unsafe conditions in the pharmacy. Id. On
March 13, 2014, the Court dismissed Plaintiff’s complaint with prejudice. Von Maack v.
Wyckoff Heights Med. Ctr., 43 Misc. 3d 1206(A) (Sup. Ct., Kings Cty. Mar. 13, 2014). The
Court held, in part, that Plaintiff could not relitigate the issue of her termination, because an
arbitrator had already determined that she was fired for just cause. Id. at *11–12. 11 Following

10

The NLRB also upheld dismissal of Plaintiff’s complaint against 1199, finding there to be insufficient evidence
that the union breached its DFR. Hoey Decl., Exs. O, P.
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The Court also held that Plaintiff was not a covered employee within the meaning of § 741, since she did not
make judgments about the quality of care for the patients who were to receive the medications she prepared, 43
Misc. 3d 1206(A), at *14–15, that Plaintiff failed to specify which laws, rules, or regulations she believes Wyckoff
violated, id. at *16, and that her allegations concerned only purported dangers to Wyckoff’s employees and herself,
although § 741 was meant to protect the general public or a specific patient, id. at *16–17. Plaintiff’s pro se appeal
before the Second Department of the New York State Appellate Division is currently pending. Compl. at 2 ¶ 2.

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the dismissal of her case, Plaintiff attempted to reopen her NYSDHR complaint, but a division
officer informed her that she could not do so. Compl. at 35 ¶ 69. As a result, Plaintiff “vowed
[she] would never hire a lawyer again.” Id.
On June 17, 2014, Plaintiff filed a pro se action against 1199 in the Southern District of
New York. As in the present action, Plaintiff alleged violations by 1199 of a host of federal
laws, but the essence of her complaint in that case was that 1199 violated its DFR by conspiring
with Wyckoff to have her terminated and by failing to properly grieve her termination. Von
Maack v. 1199SEIU United Healthcare Workers E., No. 14 Civ. 4360 (PKC), 2014 WL
5801349, at *1 (S.D.N.Y. Nov. 7, 2014). On November 7, 2014, District Court Judge P. Kevin
Castel dismissed Plaintiff’s complaint, finding, among other things, that Plaintiff failed to
plausibly allege discrimination by 1199 and that Plaintiff’s other DFR claims were untimely. Id.
at *4–6. The Second Circuit Court of Appeals affirmed the decision. Von Maack v. 1199 SEIU
Local, No. 14-4276, 2016 WL 190314, at *1 (2d Cir. Jan. 15, 2016). 12
On July 30, 2014, Plaintiff filed a second discrimination complaint against Wyckoff with
the NYSDHR, alleging violations of Title VII of the Civil Rights Act of 1964 (“Title VII”), the
Americans with Disabilities Act (“ADA”), and the Age Discrimination in Employment Act
(“ADEA”). Compl. at 36 ¶ 73; Hoey Decl., Ex. U. The NYSDHR investigated the charges, and
on January 21, 2015, the agency issued a determination that charges related to Wyckoff’s actions
during Plaintiff’s employment period were time barred, and that there was no probable cause to
believe Wyckoff engaged in any discriminatory practices in the year preceding the filing of her

Plaintiff indicates that if the Second Department denies her whistleblower status under § 741, she plans to challenge
the decision in federal district court. Id. at 3 n.1.
12

On April 14, 2016, Plaintiff filed a pro se petition for a writ of certiorari with the United States Supreme Court.

10

charge. Hoey Decl., Ex. V. On February 25, 2015, the EEOC dismissed the charge, adopting
the NYSDHR’s findings, and sent Plaintiff a Notice of Right to Sue. Compl., Ex. 1.
After receiving the EEOC Notice, on May 22, 2015, Plaintiff filed the present suit.
Among other things, Plaintiff alleges that Wyckoff discriminated against her in violation of a
number of federal statutes, retaliated against her for complaining about her treatment and the
hazardous conditions in the pharmacy, and fired her unreasonably. On September 30, 2015,
Defendant moved to dismiss the Complaint. See Memorandum of Law in Support of
Defendant’s Motion to Dismiss (Doc. 11) (“Def.’s Mem.”). On October 30, 2015, Plaintiff
opposed Defendant’s motion and separately moved to vacate the arbitration award. See
Response to Defendant’s Motion to Dismiss (Doc. 15) (“Pl.’s Opp’n Mem.”); Memorandum of
Law in Support of Motion to Vacate the Arbitration Award (Doc. 16) (“Pl.’s Mem.”). Defendant
opposed Plaintiff’s motion. See Memorandum of Law in Opposition to Plaintiff’s Motion to
Vacate the Arbitration Award (Doc 19) (“Def.’s Opp’n Mem.”).
II. LEGAL STANDARD
When ruling on a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, the Court must accept all factual allegations in the complaint as true and draw
all reasonable inferences in the plaintiff’s favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.
2014). The Court is not required to credit “mere conclusory statements” or “[t]hreadbare recitals
of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’”
Id. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). More specifically, the
plaintiff must allege sufficient facts to show “more than a sheer possibility that a defendant has
acted unlawfully.” Id. If the plaintiff has not “nudged [his] claims across the line from
conceivable to plausible, [the] complaint must be dismissed.” Twombly, 550 U.S. at 570; see
Iqbal, 556 U.S. at 680.
The same standard applies to motions to dismiss pro se complaints. See Mancuso v.
Hynes, 379 F. App’x 60, 61 (2d Cir. 2010) (summary order). The Court is also obligated to
construe a pro se complaint liberally and to interpret a pro se plaintiff’s claims as raising the
strongest arguments that they suggest. Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011);
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006). The obligation to be
lenient while reading a pro se plaintiff’s pleadings “applies with particular force when the
plaintiff’s civil rights are at issue.” Jackson v. N.Y.S. Dep’t of Labor, 709 F. Supp. 2d 218, 224
(S.D.N.Y. 2010) (citing McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004)). “However,
even pro se plaintiffs asserting civil rights claims cannot withstand a motion to dismiss unless
their pleadings contain factual allegations sufficient to raise a ‘right to relief above the
speculative level.’” Id. at 224 (quoting Twombly, 550 U.S. at 555). A complaint that “tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement’” will not suffice. Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 557); see also Triestman, 470 F.3d at 477 (“[P]ro se status
‘does not exempt a party from compliance with relevant rules of procedural and substantive
law.’”) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)).
III. DISCUSSION
Plaintiff alleges a host of claims in her 73-page Complaint. For the reasons discussed
below, all of those claims are dismissed, and Plaintiff’s motion to vacate the arbitration award is

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denied. Plaintiff will, however, be granted leave to file an Amended Complaint to replead
certain of her claims.
A. Plaintiff’s Motion to Vacate the Arbitration Award is Untimely.
Plaintiff seeks to vacate the April 30, 2012 arbitration award that found her termination
was for just cause. Pl.’s Mem. at 1; see Compl., Ex. 36. Plaintiff initially styled her request as
Count 11 in her Complaint. Compl. at 61–72. After Defendant challenged the claim as
procedurally defective, Def.’s Mem. at 17–18, Plaintiff filed a separate motion to vacate the
award under Section 10 of the Federal Arbitration Act (“FAA”).
In its opposition brief, Defendant argues that the FAA is inapplicable here, where the
arbitration award was issued pursuant to a CBA. Def.’s Opp’n Mem. at 4. Instead, Defendant
argues that Section 301 of the Labor Management Relations Act (“LMRA”) applies. Id. at 5. In
her reply, Plaintiff concedes the FAA is inapplicable, but for a separate reason—because the
union arbitrated the termination on her behalf, Plaintiff claims she was not a “party” to the
arbitration. Pl.’s Reply Mem. at 3–4 & n.3. As a result, Plaintiff asserts that she has abandoned
her FAA claim. Id. at 4 (“I am not legally capable to use the FAA in this lawsuit. For this
reason, the cause of action under the FAA can be aborted. . . . [T]here is no such cause of action
any more.”). However, she still asks the Court to “void the arbitration” pursuant to her breach of
contract and discrimination claims. Id. at 4–7, 13–14 (“[T]he award is illegal in light of the
statutes listed in my initial complaint.”). Because it is not clear from Plaintiff’s papers whether
she has indeed abandoned her claim, the Court will consider both parties’ arguments and decide
the motion.

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Under either the FAA or LMRA, Plaintiff’s request to vacate the arbitration award is
untimely. 13 The FAA provides that notice of a motion to vacate an arbitration award “must be
served upon the adverse party or his attorney within three months after the award is filed or
delivered.” 9 U.S.C. § 12. After the three-month period has run, “a party may not raise a motion
to vacate, modify or correct an arbitration award.” Wallace v. Buttar, 378 F.3d 182, 197 (2d Cir.
2004). Here, Plaintiff admits that she received the April 30, 2012 arbitration award on May 10,
2012, Pl.’s Mem. at 6, but she did not seek vacatur until over three years later. Plaintiff’s request
is thus untimely under the FAA.
Although Congress did not provide a statute of limitations for suits brought under Section
301 of the LMRA, courts in this Circuit have held that a plaintiff has ninety days from the receipt
of a labor arbitration award to petition for vacatur. See, e.g., Orange and Rockland Utils., Inc. v.
Local 503, Int’l Brotherhood of Elec. Workers, No. 05 Civ. 6320 (WCC), 2006 WL 1073049, at
*3 (S.D.N.Y. Apr. 21, 2006). 14 Again, Plaintiff did not seek vacatur until over three years after

13

Given that Plaintiff’s request is time barred, the Court need not decide whether the FAA applies here or whether
Plaintiff was a “party” to the arbitration for purposes of that statute. However, Plaintiff’s suggestion that the award
is unenforceable, Pl.’s Reply Mem. at 4 n.5, is incorrect—the CBA itself provides that an arbitrator’s award “shall
be final, conclusive and binding upon the Employer, the Union and the Employees,” Compl., Ex. 4 at 94. See also
Von Maack v. Wyckoff Heights Med. Ctr., 43 Misc. 3d 1206(A), at *11 (“[W]hen a union arbitrates on behalf of a
grievant, the union acts as the agent of that grievant, and the grievant is bound by all claims decided at the
arbitration. Here, it is undisputed that the Union represented plaintiff at the arbitration hearing . . . .”) (citations
omitted).
14

Courts determine the timeliness of a Section 301 suit by looking to the most appropriate state statute of
limitations. Harry Hoffman Printing, Inc. v. Graphic Commc’ns, Int’l Union, Local 261, 912 F.2d 608, 612 (2d Cir.
1990). The Second Circuit has held that CPLR 7511(a), which provides the grounds for vacating an arbitration
award under New York law, provides the most appropriate limitations period for challenging an arbitration award
under Section 301 in New York. Id. at 612–13; see also Local 802, Associated Musicians of Greater N.Y. v. Parker
Meridien Hotel, 145 F.3d 85, 88 (2d Cir. 1998) (same). CPLR 7511(a) provides that “[a]n application to vacate or
modify an award may be made by a party within ninety days after its delivery to him.”
Plaintiff argues that instead of CPLR 7511(a), the Court should look to the four-year limitations period for claims
under 42 U.S.C. § 1981, or the six-year limitations period for breach of contract claims in New York, because she
alleges those claims in her Complaint and characterizes them as “the nucleus” of her action and “dominant” over her
other claims. Pl.’s Mem. at 8–11; Pl.’s Reply Mem. at 4–5, 8. But Plaintiff cites no authority that supports
departing from precedent in this Circuit applying CPLR 7511(a)’s ninety-day period to requests like Plaintiff’s.

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receiving her arbitration award. Pl.’s Mem. at 6. Plaintiff’s request is thus untimely under the
LMRA.
In her reply brief, Plaintiff asks the Court to vacate the arbitration award under contract
law or federal discrimination law. Pl.’s Reply Mem. at 5. But Plaintiff has not provided—and
the Court is not aware of—any cognizable basis for challenging a labor arbitration award outside
the FAA or LMRA. Accordingly, the Court denies Plaintiff’s motion to vacate the award.
B. Most of Plaintiff’s Claims Are Also Untimely.
1. Breach of Contract and LMRA Claims
Plaintiff alleges that Defendant breached various provisions of the CBA, including by
firing her without just cause. Compl. at 6, 48–49. Plaintiff also alleges that her termination
violated the LMRA, because it was without just cause and because her union breached its duty to
fairly represent her interests under the CBA. Id. at 57–58.
Section 301 of the LMRA provides, in pertinent part, that “[s]uits for violation of
contracts between an employer and a labor organization representing employees in an industry
affecting commerce . . . may be brought in any district court of the United States having
jurisdiction of the parties.” 29 U.S.C. § 185(a). The Supreme Court has held that this provision
completely preempts “any state cause of action” for such violations. Franchise Tax Bd. of State
of Cal. v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 23 (1983), superseded by
statute on other grounds, 28 U.S.C. § 1441(e); see also Avedisian v. Quinnipiac Univ., 387 F.
App’x 59, 62 (2d Cir. 2010) (“Breach of contract claims founded directly on rights created by
collective-bargaining agreements, or substantially dependent upon analysis of the terms of [such]
agreement[s], are completely preempted by Section 301 of the Labor Management Relations
Act.”) (citations and internal quotation marks omitted). Here, because Plaintiff’s breach of
contract claim is founded directly on rights created by the CBA, Section 301 preempts the claim.
15

Avedisian, 387 F. App’x at 62; see also Romero v. DHL Express, Inc., No. 12 Civ. 1942 (VEC)
(RLE), 2015 WL 1315191, at *6 (S.D.N.Y. Mar. 24, 2015) (finding plaintiff’s breach of contract
claim preempted by Section 301, where the claim was premised on defendant creating a hostile
work environment and subjecting plaintiff to discrimination, retaliation, and wrongful
termination in violation of the terms of a CBA). 15
Plaintiff’s breach of contract claim “must either be treated as a § 301 claim or dismissed
as pre-empted by federal labor-contract law.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 220
(1985) (citation omitted). Defendant argues that treating Plaintiff’s breach of contract claim as a
claim under Section 301 would be futile, since such a claim would be time barred. Def.’s Mem.
at 9 n.8. The Court agrees.
Plaintiff alleges not only that Defendant breached the CBA, but also that her union
breached its DFR by failing to properly grieve her complaints and termination. Compl. at 57–58.
Her LMRA claim is thus not a straightforward breach of contract claim under Section 301, but a
“hybrid” Section 301/fair representation claim. Carrion v. Enterprise Ass’n, Metal Trades
Branch Local Union 638, 227 F.3d 29, 33 (2d Cir. 2000); see also Compl. at 5 n.4 (explaining
that the LMRA permits her “hybrid” claim). Such a claim must have been brought within six
months of the time Plaintiff knew or should have known of 1199’s breach. Kalyanaram v. Am.
Ass’n of Univ. Professors at N.Y. Inst. of Tech., Inc., 742 F.3d 42, 46 (2d Cir. 2014) (citing
DelCostello v. Int’l Bhd. of Teamsters, 462 U.S. 151, 169 (1983)) (borrowing the limitations

15

Section 301 does not preempt “every dispute concerning employment, or tangentially involving a provision of a
collective-bargaining agreement.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 211 (1985). The preemptive effect
of Section 301 extends only to “claims founded directly on rights created by collective-bargaining agreements” and
claims “substantially dependent on analysis of a collective-bargaining agreement.” Caterpillar Inc. v. Williams, 482
U.S. 386, 394 (1987). Thus, although the CBA itself prohibits discrimination by Wyckoff against its employees, see
Compl., Ex. 4 at 13–14, Section 301 does not preempt Plaintiff’s discrimination claims premised on federal law.
See Chopra v. Display Producers, Inc., 980 F. Supp. 714, 719 (S.D.N.Y. 1997). As discussed infra, however, the
Court dismisses those claims for other reasons.

16

period for filing such a claim from Section 10(b) of the National Labor Relations Act (“NLRA”),
29 U.S.C. § 160(b)); see also Gerena v. 10 Sheridan Assocs. LLC, No. 13 Civ. 6056 (CM), 2013
WL 5880567, at *6 (S.D.N.Y. Nov. 1, 2013) (same). In this case, 1199’s most recent alleged
breach occurred at the arbitration hearing. See Compl., Ex. 37. Plaintiff thus had six months
from April 30, 2012, the date of the arbitration award, to bring her LMRA claim. Kalyanaram,
742 F.3d at 46–47. Her failure to timely do so mandates dismissal of her LMRA claim, and
renders futile the conversion of her breach of contract claim to one under the LMRA. See Von
Maack v. 1199SEIU United Healthcare Workers E., 2014 WL 5801349, at *6 (dismissing
Plaintiff’s freestanding DFR claim against 1199 as time barred).
Plaintiff argues that her suit is not a “typical hybrid action” because she sued Wyckoff
and 1199 in separate actions. Pl.’s Opp’n Mem. at 6. But Plaintiff “cannot circumvent the sixmonth limitations period for hybrid actions by choosing to sue only [her] employer.” Carrion,
227 F.3d at 34 (quoting McKee v. Transco Prods., Inc., 874 F.2d 83, 86 (2d Cir. 1989)). “The
law is clear that regardless of who is named as a defendant, a hybrid claim is presented if an
employee has a cause of action against both the employer and the union, where the two claims
are inextricably linked, and where the case to be proved is the same against both.” Id. (quoting
McKee, 874 F.2d at 86).
Plaintiff also alleges that the six-month statute of limitations should not apply to her
LMRA claim because of the longer limitations periods that apply to her discrimination claims.
Pl.’s Opp’n Mem. at 5–6. Regardless of whether Plaintiff’s claims all stem from the same
universe of facts, however, each must be timely in its own right. See Ganny v. F.J.C. Sec. Servs.,
Inc., No. 15 Civ. 1965 (JG) (JO), 2015 WL 4600745, at *6 n.8 (“The Title VII and New York

17

Human Rights Law claims are independent of the ‘hybrid’ claim and, thus, are not subject to its
six-month statute of limitations.”).
Even if Plaintiff’s LMRA claim were not time barred, the claim would still warrant
dismissal on the merits as futile. To establish a hybrid Section 301/DFR claim, Plaintiff must
prove both that Wyckoff breached the CBA and that 1199 breached its DFR. DelCostello, 462
U.S. at 165. In light of Judge Castel’s decision dismissing Plaintiff’s freestanding DFR claim
against 1199, Von Maack v. 1199SEIU United Healthcare Workers E., 2014 WL 5801349, at
*4–6, Plaintiff’s hybrid claim in this action is doomed. See Colon v. Coughlin, 58 F.3d 865, 869
(2d Cir. 1995) (“[T]he doctrine of issue preclusion . . . applies if (1) the issue in question was
actually and necessarily decided in a prior proceeding, and (2) the party against whom the
doctrine is asserted had a full and fair opportunity to litigate the issue in the first proceeding.”).
Because Plaintiff will be unable to cure the deficiencies in her breach of contract and
LMRA claims, these claims are dismissed with prejudice.
2. Title VII, ADA, and ADEA Claims
Plaintiff claims that Defendant discriminated against her, and retaliated against her for
complaining of such discrimination, in violation of Title VII. Compl. at 53–54. Plaintiff also
alleges that Defendant violated the ADA by refusing her requests for an accommodation for her
lung diseases. Id. at 54–55. Plaintiff’s ADEA claim is not clearly presented, but she seems to
allege that Defendant fired her so that she would be unable to reach retirement age and thus
receive retirement benefits. Id. at 58.
In order to bring a claim under Title VII, the ADA, or the ADEA, a plaintiff must first
exhaust her administrative remedies with the EEOC or the equivalent state-level agency, in this
case the NYSDHR. See Fleming v. Verizon N.Y., Inc., 419 F. Supp. 2d 455, 462, 467 (S.D.N.Y.

18

2005) (Title VII); Torrico v. Int’l Bus. Machs. Corp., 319 F. Supp. 2d 390, 400–01 (S.D.N.Y.
2004) (ADA); Holowecki v. Fed. Express Corp., 440 F.3d 558, 562–63 (2d Cir. 2006) (ADEA),
aff’d, 552 U.S. 389 (2008). Before a plaintiff may file a federal suit under one of these statutes:
(1) the claim forming the basis of the suit must first be raised in the plaintiff’s charge with the
EEOC or the equivalent state agency, and (2) the charge must be filed with the EEOC within 180
days of the allegedly unlawful act, or with the equivalent state agency within 300 days. See
Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006). For Title VII and ADA claims,
the plaintiff must additionally receive a Notice of Right to Sue from the EEOC before bringing
suit. Id. ADEA plaintiffs, on the other hand, do not need to first obtain a Notice of Right to Sue,
but rather need only wait sixty days after filing the EEOC or NYSDHR charge before bringing
suit. Holowecki, 440 F.3d at 563 (quoting Hodge v. N.Y. Coll. of Podiatric Med., 157 F.3d 164,
166 (2d Cir. 1998)). Failure to exhaust these administrative remedies constitutes a failure to
state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Williams, 458 F.3d at 70.
Plaintiff filed two complaints against Wyckoff with the NYSDHR, the first on August 7,
2013 and the second on July 30, 2014. Compl. at 34 ¶ 65, 36 ¶ 73; Hoey Decl., Exs. S, U.
Plaintiff concedes that she cannot rely on the first charge to support exhaustion of her present
claims, in part because it was premised on a different legal theory, but she argues that because
the EEOC issued her a Notice of Right to Sue on the second charge, 16 and because she filed the

16

Plaintiff seems to be under the misimpression that the EEOC found her claims to have merit. See Compl. at 53;
Pl.’s Opp’n Mem. at 16. In fact, the EEOC adopted the findings of the NYSDHR, which concluded that they did
not. Compl., Ex. 1 (EEOC Notice) (“The EEOC has adopted the findings of the state or local fair employment
practices agency that investigated this charge.”); Hoey Decl., Ex. V (NYSDHR Decision) (“Complainant has failed
to establish a prima facie complaint of retaliation and age, national origin and disability discrimination in that she
has not shown that she was subjected to any adverse employment action by respondent during the one year period
that preceded her filing of the instant complaint. To the extent that complainant raises allegations regarding her
termination and adverse actions that allegedly took place while she was employed by respondent, such allegations
are barred by the one year statute of limitations. For these reasons, the record does not support a determination of
probable cause in this case.”).

19

instant suit within ninety days of receiving the Notice, her Title VII, ADA, and ADEA claims are
still viable. Pl.’s Opp’n Mem. at 16–17. Plaintiff’s allegations of discrimination in the present
suit all relate to events taking place while she was employed by Defendant. Plaintiff thus had
300 days from the day she was terminated to file charges with the NYSDHR. However, she
waited almost two years to file her first charge and three years to file her second; accordingly,
neither charge was timely filed. See Rogers v. Fashion Inst. of Tech., No. 14 Civ. 6420 (AT),
2016 WL 889590, at *4 (S.D.N.Y. Feb. 26, 2016) (“[D]iscrete acts of discrimination that
occurred before . . . 300 days prior to the filing date[] are not actionable.”). Plaintiff’s Title VII,
ADA, and ADEA claims are thus dismissed with prejudice.
3. EPA Claim
The Equal Pay Act (“EPA”) provides for a two-year statute of limitations for standard
violations and a three-year statute of limitations for willful violations. See Barrett v. Forest
Labs., Inc., No. 12 Civ. 5224 (RA), 2015 WL 4111827, at *2 (S.D.N.Y. July 8, 2015). Like
Plaintiff’s discrimination claims, Plaintiff’s EPA claim arises from events taking place while
Plaintiff was employed by Defendant—an employment period that ended on August 11, 2011.
Regardless of whether the two- or three-year statute of limitations applies, Plaintiff’s EPA claim
is thus time barred.
Even if her EPA claim were timely, Plaintiff fails to adequately allege such a claim. The
EPA prohibits an employer from “paying wages to employees . . . at a rate less than the rate at
which he pays wages to employees of the opposite sex . . . for equal work on jobs the
performance of which requires equal skill, effort, and responsibility, and which are performed
under similar working conditions.” 29 U.S.C. § 206(d)(1). Plaintiff alleges that pharmacist
Larry Coppola made more money than her, although he had “lesser seniority” and “lesser

20

education” than she did. Compl. at 56–57. 17 The Complaint is devoid of any allegations going
to whether Plaintiff and Coppola performed a “substantially similar” job, however, Barrett v.
Forest Labs., Inc., 39 F. Supp. 3d 407, 452 (S.D.N.Y. 2014), and Plaintiff fails to allege that she
and Coppola performed under “similar working conditions.” 18 Accordingly, Plaintiff’s EPA
claim would be subject to dismissal if not time barred.
4. FLSA Claim
Plaintiff’s claim under the Fair Labor Standards Act (“FLSA”) is deficient in three
distinct ways. First, the issue of Plaintiff’s unpaid wages has already been presented to and
decided by the New York City Small Claims Court. Pl.’s Reply Mem., Ex. K. Plaintiff is thus
precluded from relitigating that issue here. See Colon, 58 F.3d at 869.
Second, like the EPA, the FLSA provides for a two-year statute of limitations for
standard violations and a three-year statute of limitations for willful violations. See Herman v.
RSR Sec. Servs. Ltd., 172 F.3d 132, 141 (2d Cir. 1999). Plaintiff’s FLSA claim also arises from
events taking place while Plaintiff was employed by Defendant. Regardless of whether the twoor three-year statute of limitations applies, Plaintiff’s FLSA claim is thus time barred.
Finally, even if Plaintiff’s FLSA claim were timely, the claim is deficient as alleged.
Plaintiff alleges that Defendant’s discriminatory actions caused pay inequities that manifested in
FLSA violations, Compl. at 56, but Plaintiff does not specify which provision of the FLSA was
violated. Instead, Plaintiff simply alleges that Defendant owes her $30,000 in unpaid wages.
This conclusory allegation alone is insufficient to survive dismissal.

17
Plaintiff also alleges that her union violated the EPA by distributing benefits unequally. Compl. at 56–57. But
Plaintiff’s union is neither a defendant in this action nor an employer for purposes of the EPA.
18

It is not apparent that because Plaintiff and Coppola are both pharmacists, they performed substantially similar
work under similar conditions. For example, a shift schedule attached to the Complaint indicates that while Plaintiff
alternated working days (7:00 a.m. to 5:10 p.m.) and evenings (11:50 a.m. to 10:00 p.m.), Coppola worked the night
shift (8:15 p.m. to 7:30 a.m.). Compl., Ex. 9.

21

Accordingly, Plaintiff’s FLSA claim is dismissed with prejudice.
5. FMLA Claim
Plaintiff alleges that she was unfairly denied requests for medical leave, in violation of
the Family and Medical Leave Act (“FMLA”). Compl. at 57. Specifically, Plaintiff alleges that
in 2010, she informed Director Rumore about her lung disease and asked him not to schedule her
in the compounding room for a few days in a row, but her request was denied. Id. at 19 ¶ 29.
Plaintiff also alleges that in June 2010, she requested a leave of absence for health reasons,
which was denied. Compl. at 20 ¶ 31. In October 2010, she submitted a written request for
leave, but Plaintiff claims that Director Rumore “threw the note in [her] face.” Id. Plaintiff
claims she was frightened to submit another request for medical leave after that incident. Id.
The FMLA also provides for a two-year statute of limitations for standard violations and
a three-year statute of limitations for willful violations. See Richards v. N.Y.C. Dep’t of Educ.,
No. 13 Civ. 16 (VEC), 2015 WL 4164746, at *13 (S.D.N.Y. July 10, 2015). Plaintiff’s FMLA
claim arises from events taking place in 2010, well over four years before Plaintiff filed this
action. Regardless of whether the two- or three-year statute of limitations applies, Plaintiff’s
FMLA claim is time barred. Accordingly, Plaintiff’s FMLA claim is dismissed.
6. ERISA Claim
Plaintiff alleges that Defendant fired her unreasonably, before she reached retirement age,
preventing her from obtaining full retirement benefits. Compl. at 58. Although she styles her
claim as one under the Employee Retirement Income Security Act (“ERISA”), Plaintiff does not
specify which provision of that complex statute governs her claim. Id. Considering the nature of
Plaintiff’s allegations, the Court, like Defendant, construes Plaintiff’s ERISA claim as one under
Section 510. See Def.’s Mem. at 16. That provision provides, in part, that “[i]t shall be unlawful

22

for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant
or beneficiary . . . for the purpose of interfering with the attainment of any right to which such
participant may become entitled.” 29 U.S.C. § 1140. In this Circuit, the statute of limitations for
a Section 510 claim is two years after the date of termination. Gabel v. Richards Spears Kibbe &
Orbe, LLP, 615 F. Supp. 2d 241, 244 (S.D.N.Y. 2009) (citing Sandberg v. KPMG Peat Marwick
LLP, 111 F.3d 331, 336 (2d Cir. 1997)). Plaintiff was fired on August 11, 2011 and did not file
this suit until May 22, 2015. Plaintiff’s ERISA claim is thus time barred.
Even if Plaintiff’s ERISA claim were timely, Plaintiff has not plausibly alleged such a
claim. “‘An essential element of plaintiff’s proof under the statute is to show that an employer
was at least in part motivated by the specific intent to engage in activity prohibited by § 510.’
Therefore, a claim fails ‘where the loss of pension benefits was a mere consequence of, but not a
motivating factor behind, a termination of employment.’” Haight v. NYU Langone Med. Ctr.,
Inc., No. 13 Civ. 4993 (LGS), 2014 WL 2933190, at *16 (S.D.N.Y. June 27, 2014) (quoting
Dister v. Cont’l Grp., Inc., 859 F.2d 1108, 1111 (2d Cir. 1988)). Here, Plaintiff alleges only in
conclusory fashion that her termination “prevented [her from] obtaining full retirement benefits.”
Compl. at 58. Plaintiff’s ERISA claim is therefore dismissed.
C. Equitable Tolling is Not Appropriate Based on the Facts as Alleged.
Plaintiff submits that due to “extraordinary circumstances,” the doctrine of equitable
tolling applies to her otherwise untimely motion and claims. Pl.’s Mem. at 3–8; Pl.’s Reply
Mem. at 10–13. Equitable tolling applies only in “rare and exceptional circumstance[s].” A.Q.C.
ex rel. Castillo v. U.S., 656 F.3d 135, 144 (2d Cir. 2011) (quoting Smith v. McGinnis, 208 F.3d
13, 17 (2d Cir. 2000)). Plaintiff “is entitled to equitable tolling of a statute of limitations only if
[she] establishes two elements: ‘(1) that [she] has been pursuing [her] rights diligently, and

23

(2) that some extraordinary circumstance stood in [her] way and prevented timely filing.’”
Menominee Indian Tribe of Wisc. v. United States, 136 S. Ct. 750, 755 (2016) (quoting Holland
v. Florida, 560 U.S. 631, 649 (2010)); see also Ellul v. Congregation of Christian Bros., 774
F.3d 791, 801 (2d Cir. 2014). The second element of this test is met only where the
circumstances causing Plaintiff’s delay “are both extraordinary and beyond [her] control.”
Menominee, 136 S. Ct. at 756. “The term ‘extraordinary’ refers not to the uniqueness of a
party’s circumstances, but rather to the severity of the obstacle impeding compliance with a
limitations period.” Harper v. Ercole, 648 F.3d 132, 137 (2d Cir. 2011) (citing Bolarinwa v.
Williams, 593 F.3d 226, 231–32 (2d Cir. 2010), and Diaz v. Kelly, 515 F.3d 149, 154 (2d Cir.
2008)). It is not sufficient for Plaintiff to show that she experienced extraordinary
circumstances—she “must further demonstrate that those circumstances caused [her] to miss the
original filing deadline.” Id.
Plaintiff alleges that her attorney’s “incompetence” stood in the way of her timely filing,
because her attorney closed her charge with the NYSDHR and included only one State law claim
in her July 22, 2013 State Court action against Defendant. Pl.’s Reply Mem. at 11–12.
“Attorney error generally does not rise to the level of an ‘extraordinary circumstance.’”
Martinez v. Superintendent of E. Corr. Facility, 806 F.3d 27, 31 (2d Cir. 2015) (quoting
Baldayaque v. United States, 338 F.3d 145, 152 (2d Cir. 2003)). “[S]erious instances of attorney
misconduct,” however, may constitute “extraordinary circumstances” that warrant tolling a
statute of limitations. Holland, 560 U.S. at 651–52; see also Baldayaque, 338 F.3d at 152 (“[A]t
some point, an attorney’s behavior may be so outrageous or so incompetent as to render it
extraordinary.”). Based on the facts as alleged, this Court cannot conclude that Plaintiff’s
attorney’s conduct rises to the level of an extraordinary circumstance necessary to invoke

24

equitable tolling. Plaintiff is granted leave, however, to replead such facts as may exist going to
this issue in an Amended Complaint. 19
Plaintiff’s alternative arguments in support of equitable tolling, on the other hand, lack
merit. First, Plaintiff argues that her efforts to timely file were thwarted by the NLRB and
OSHA—agencies to which she brought charges against Defendant—yet neither of these
agencies’ actions in any way hindered Plaintiff’s ability to challenge the arbitration award or
bring the present suit. Charges with these agencies were not, as Plaintiff alleges,
“precondition[s]” to any of her claims. Pl.’s Mem. at 6. And whether or not the NLRB correctly
decided that Plaintiff’s charge against Defendant was time barred, id. at 7, the agency’s decision
applied only to her NLRB charge, not to any of her other claims.
Next, Plaintiff argues that the NLRB and her union failed to inform her about the
applicable statute of limitations. Id. at 4, 8. But Plaintiff fails to establish that these entities were
under any such duty to do so, and ignorance of the law is not an “extraordinary circumstance”
warranting tolling. See, e.g., Antonmarchi v. Consol. Edison Co. of N.Y., Inc., 514 F. App’x 33,
37 (2d Cir. 2013) (summary order) (affirming a district court’s determination that equitable
tolling was not appropriate where plaintiff asserted that “he was late in filing his complaint

19

Plaintiff did not retain her attorney until October 2012, Compl. at 31 ¶ 58, over a year after her termination and
five months after she received the arbitrator’s decision. Thus, the limitations periods on Plaintiff’s motion to vacate
and her Title VII, ADA, and ADEA claims expired before any tolling due to attorney misconduct would have begun.
The representation appears to have concluded in August 2014, id. at 35 ¶ 67–68, over eight months before Plaintiff
filed this suit. It is therefore possible, depending on the circumstances, that tolling would also not render Plaintiff’s
EPA, FMLA, or ERISA claims timely. See also Pl.’s Opp’n Mem. at 16 (seeming to concede that her FMLA and
ERISA claims—as well as “some other” claims—are time barred and noting that these claims were added to her
Complaint “only for illustrative purposes”).
Equitable tolling would not save Plaintiff’s LMRA claim, even if timely, since she is precluded from relitigating the
issue of 1199’s breach of its DFR. See supra Section III.B.1. Similarly, equitable tolling would not save Plaintiff’s
FLSA claim, since she is precluded from relitigating the issue of her unpaid wages. See supra Section III.B.4.

25

because he was unaware of the statute of limitations, and because he received incorrect
information from a third party concerning his remedies”).
Plaintiff finally argues that the statute of limitations should be tolled due to Defendant’s
fraudulent concealment of certain facts. Pl.’s Mem. at 3–5. “Under federal common law, a
statute of limitations may be tolled due to the defendant’s fraudulent concealment if the plaintiff
establishes that: (1) the defendant wrongfully concealed material facts relating to defendant’s
wrongdoing; (2) the concealment prevented plaintiff’s discovery of the nature of the claim within
the limitations period; and (3) plaintiff exercised due diligence in pursuing the discovery of the
claim during the period plaintiff seeks to have tolled.” Corcoran v. N.Y. Power Auth., 202 F.3d
530, 543 (2d Cir. 1999) (internal quotation marks omitted). Plaintiff alleges that: Wyckoff and
1199 concealed from the arbitrator the fact that an ALJ had previously ruled in Plaintiff’s favor
with respect to her unemployment benefits, Pl.’s Mem. at 3; 1199 concealed from the arbitrator
certain facts regarding Plaintiff’s termination, id. at 4; 1199 concealed from Plaintiff certain facts
regarding the legal ramifications of proceeding to arbitration, id.; and Wyckoff concealed from
Plaintiff the fact that it allegedly “settled” with her attorney, Pl.’s Reply Mem. at 10. The first
three allegations fail to establish that Defendant concealed anything from Plaintiff. And the
fourth allegation, aside from being vague, has no bearing on Plaintiff’s ability to discover the
facts relevant to her claims in this action. Accordingly, Plaintiff has failed to establish equitable
tolling based on fraudulent concealment.
D. Plaintiff’s Remaining Claims Have Not Been Adequately Plead.
1. Section 1981 Claim
Plaintiff alleged in her Complaint that while working for Defendant, she was subject to
ongoing discrimination based on her “immigration status” (as a naturalized, as opposed to natural

26

born, American citizen) and “national origin” (Polish) in violation of 42 U.S.C. § 1981. Compl.
at 49–50, 52–53. Plaintiff also claimed that she was subject to retaliation after complaining
about such discrimination. Id. at 51–52. Defendant argues that Plaintiff’s alleged bases for
discrimination are not cognizable under Section 1981. Def.’s Mem. at 10–11.
In her opposition brief, Plaintiff alleges for the first time that her Section 1981 claim
against Defendant is actually one for racial discrimination, 20 premised on her being white and of
Polish “ethnicity.” Pl.’s Opp’n Mem. at 8–15. 21 Because these allegations were not included in
the Complaint, the Court may not consider them in deciding Defendant’s motion to dismiss.
Jordan v. Chase Manhattan Bank, 91 F. Supp. 3d 491, 500 (S.D.N.Y. 2015); see also O’Brien v.

20
Plaintiff did allege racial discrimination in her Complaint, but only as to her union—not her employer. Compl. at
50 (“Within 1199, the motivating factor was racial discrimination by well-established major minority. At Wyckoff’s
pharmacy, I was discriminated by American born citizens based on my immigration status (citizenship) and national
origin.”).
21
Plaintiff argues that Polish-Americans should be recognized as a distinct ethnic group warranting protection under
Section 1981, just like Arab-Americans. Pl.’s Opp’n Mem. at 11–14. Although the Court need not decide the issue
today, Plaintiff’s argument is not as tenuous as Defendant contends. The Supreme Court has stated:

[A]ll those who might be deemed Caucasian today were not thought to be of the same race at the
time § 1981 became law. . . . The debates are replete with references to the Scandinavian races, as
well as the Chinese, Latin, Spanish, and Anglo-Saxon races. Jews, Mexicans, blacks, and
Mongolians were similarly categorized. Gypsies were referred to as a race. Likewise, the
Germans . . . . Based on the history of § 1981, we have little trouble in concluding that Congress
intended to protect from discrimination identifiable classes of persons who are subjected to
intentional discrimination solely because of their ancestry or ethnic characteristics. Such
discrimination is racial discrimination that Congress intended § 1981 to forbid, whether or not it
would be classified as racial in terms of modern scientific theory. The Court of Appeals was thus
quite right in holding that § 1981, “at a minimum,” reaches discrimination against an individual
“because he or she is genetically part of an ethnically and physiognomically distinctive subgrouping of homo sapiens.” It is clear from our holding, however, that a distinctive physiognomy
is not essential to qualify for § 1981 protection. If respondent on remand can prove that he was
subjected to intentional discrimination based on the fact that he was born an Arab, rather than
solely on the place or nation of his origin, or his religion, he will have made out a case under
§ 1981.
Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 610–13 (1987); see also Vill. of Freeport v. Barrella, 814 F.3d
594, 605 n.25 (2d Cir. 2016) (indicating that a “white applicant whose ancestry is one-half Hispanic and one-half
Irish . . . could, in principle, bring a race-discrimination suit if an employer refuses to hire him because he is IrishAmerican, and instead hires a white Italian-American”). But see Doroz v. Columbia Place Assocs. LLC, No. 13 Civ.
1135 (DNH), 2014 WL 5475289, at *4 (N.D.N.Y. Oct. 29, 2014) (“Plaintiff claims defendants discriminated against
him because he is a native of Poland and speaks with an accent. Such does not constitute discrimination based on
race, ancestry, or particular ethnic characteristics. Accordingly, the § 1981 claim will be dismissed.”).

27

Nat’l Prop. Analysts Partners, 719 F. Supp. 222, 229 (S.D.N.Y. 1989) (“[I]t is axiomatic that the
Complaint cannot be amended by the briefs in opposition to a motion to dismiss.”). The Court
has, however, considered these allegations in determining whether to grant Plaintiff leave to
replead this claim.
Section 1981 provides, in relevant part, that “[a]ll persons within the jurisdiction of the
United States shall have the same right in every State and Territory to make and enforce
contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). Although the statute does
not use the word “race,” the Supreme Court has construed it to forbid “racial” discrimination,
including discrimination based on “ancestry or ethnic characteristics,” in public or private
employment. Saint Francis Coll. v. Al-Khazraji, 481 U.S. 604, 609, 613 (1987). Unlike Title
VII, Section 1981 does not reach discrimination on the basis of “national origin,” id. at 613
(indicating that a claim based “solely on the place or nation of [one’s] origin” is not cognizable
under Section 1981); see also Vill. of Freeport v. Barrella, 814 F.3d 594, 606 (2d Cir. 2016)
(“Section 1981 prohibits discrimination on the basis of race but not on the basis of national
origin.”), though claims based on both race and national origin “may substantially overlap or
even be indistinguishable depending on the specific facts of a case,” Vill. of Freeport, 814 F.3d
at 606 (quoting Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003)). The Second Circuit has
additionally held that Section 1981 proscribes discrimination on the basis of “alienage,” i.e.,
“citizenship,” Anderson v. Conboy, 156 F.3d 167, 171, 173 (2d Cir. 1998) (“The use of ‘persons’
rather than ‘citizens’ was deliberate.”); accord Sagana v. Tenorio, 384 F.3d 731, 737–38 (9th
Cir. 2004), which “is distinct from both national-origin and birthplace discrimination,”
Anderson, 156 F.3d at 171 n.5.

28

Plaintiff’s claim, as alleged in the Complaint, that she was discriminated against based on
her national origin is not cognizable under Section 1981. Vill. of Freeport, 814 F.3d at 606; see
also Maslowski v. Crimson Constr. Corp., No. 11 Civ. 556 (VVP), 2013 WL 752199, at *3
(E.D.N.Y. Feb. 27, 2013) (dismissing with prejudice plaintiffs’ Section 1981 claim asserting
discrimination based on Polish national origin).
With respect to Plaintiff’s claim that she was discriminated against because she is a
naturalized citizen, the Court has not identified, and Plaintiff has not submitted, any precedent in
this Circuit establishing that Section 1981’s prohibition of alienage discrimination extends to
naturalized U.S. citizens. Cf. Juarez v. Northwestern Mutual Life Ins. Co., Inc., 69 F. Supp. 3d
364, 368–69 (S.D.N.Y. 2014) (holding that the protection of Section 1981 “extends to all
lawfully present aliens, whether or not they have a green card”) (emphasis added).
Even if Plaintiff’s alienage claim were cognizable, however, Plaintiff has not properly
alleged such a claim. In order to survive a motion to dismiss, Plaintiff’s allegations “must
provide ‘at least minimal support for the proposition that the employer was motivated by
discriminatory intent.’” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir.
2015) (quoting Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)). 22 Plaintiff
alleges that some of her colleagues received preferential treatment, but she identifies the
citizenship status of only two—Larry Coppola and Maria Esposito, both alleged to be natural
born citizens. Compl. at 7. Compared to these two individuals, Plaintiff claims that she received
less favorable shifts and assignments, id. at 7–8, and harsher punishments, id. at 10–11, 22–23.

22

Although Vega and Littlejohn discussed pleading standards in the context of Title VII employment discrimination,
they both relied on the Supreme Court’s decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), which the
Second Circuit has held to apply with equal force to any claim covered by the framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), including claims under Section 1981. Azkour v. Bowery Residents’ Comm.,
Inc., No. 15-887, 2016 WL 1552367, at *2 n.1 (2d Cir. Apr. 18, 2016) (summary order) (citing Williams, 458 F.3d at
72).

29

Plaintiff does not identify the citizenship status of her supervisor, Director Rumore, or of any of
her other colleagues who allegedly received favorable or, like her, less favorable treatment. Nor
does she allege any examples of discriminatory comments or innuendo related to her citizenship
status. On the facts as alleged, the Complaint does not plausibly give rise to an inference of
discrimination. See Doe v. Columbia Univ., 101 F. Supp. 3d 356, 371 (S.D.N.Y. 2015)
(“[W]hile Columbia may well have treated Jane Doe more favorably than Plaintiff during the
disciplinary process, the mere fact that Plaintiff is male and Jane Doe is female does not suggest
that the disparate treatment was because of Plaintiff’s sex.”), appeal filed, Nos. 15-1661, 151536 (2d Cir.); cf. Ruiz v. City of New York, No. 14 Civ. 5231 (VEC), 2015 WL 5146629, at *4
(S.D.N.Y. Sept. 2, 2015) (denying dismissal of a Hispanic plaintiff’s racial discrimination claim
where she alleged not only that she was punished more harshly than non-minority employees,
but also that she was prohibited from speaking Spanish on the job “in a manner that could
suggest racial animus”).
Because it is not clear that granting Plaintiff leave to amend her Complaint would be
futile with respect to her Section 1981 claim, 23 the claim is dismissed without prejudice.
2. COBRA Claim
Plaintiff alleges that Defendant violated the Consolidated Omnibus Budget
Reconciliation Act (“COBRA”) by terminating her health insurance without proper notification

23
The parties agree that Plaintiff’s Section 1981 claim is subject to a four-year statute of limitations, and that to the
extent the claim is based on events occurring after May 22, 2011, the claim was timely filed. Def.’s Mem. at 11–12;
Pl.’s Opp’n Mem. at 15. Plaintiff alleges that events occurring before May 22, 2011 may additionally serve as the
basis of her claim under the “continuing violation doctrine.” Pl.’s Opp’n Mem. at 15–16; see Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 105 (2002) (“[C]onsideration of the entire scope of a hostile work environment
claim, including behavior alleged outside the statutory time period, is permissible for the purposes of assessing
liability, so long as an act contributing to that hostile environment takes place within the statutory time period.”),
superseded in part by statute, Lilly Ledbetter Fair Pay Act, Pub. L. No. 111-2, 123 Stat. 5 (2009). Given the Court’s
decision dismissing Plaintiff’s Complaint, the Court need not decide whether the allegations as pleaded fit this
theory.

30

and without giving her the opportunity to extend her insurance under group coverage. Compl. at
58. “While statutory damages are available for failure to comply with COBRA’s notice
provisions, they are available only against the actual plan administrator—not against an
employer who is not the plan administrator.” Gill v. ACACIA Network, No. 13 Civ. 9088 (TPG),
2015 WL 1254774, at *4 (S.D.N.Y. Mar. 18, 2015) (citing 29 U.S.C. § 1132(c)(3)); see also
Capobianco v. Sandow Media Corp., Nos. 11 Civ. 3162 (LAP), 11 Civ. 3163 (LAP), 2012 WL
4561761, at *7 (S.D.N.Y. Sept. 29, 2012) (same). Defendant did not administer Plaintiff’s health
insurance plan—her union did. Compl., Ex. 4 at 76–79. Accordingly, Plaintiff’s COBRA claim
is dismissed with prejudice.
3. NLRA Claim
Plaintiff alleges that Defendant committed unfair labor practices by retaliating against
her, in violation of the NLRA. Compl. at 55–56. The NLRA does not authorize such a private
cause of action, however. Instead, “unfair labor practices,” as defined in Section 8 of the NLRA,
“are peculiarly within the ambit of the National Labor Relations Board.” In re Consol. Laundries
Corp. v. Craft, 185 F. Supp. 631, 635 (S.D.N.Y. 1960); see also Woods v. Dist. Council for
N.Y.C. & Vicinity of the United Bhd. of Carpenters & Joiners of Am., 14 Civ. 9057 (JPO), 2015
WL 3763916, at *5 (S.D.N.Y. June 16, 2015) (“[T]he States as well as the federal courts must
defer to the exclusive competence of the National Labor Relations Board.”). 24 Plaintiff’s NLRA
claim is thus dismissed with prejudice.

24
The NLRB dismissed Plaintiff’s charges against Wyckoff and 1199 and sustained the decisions on appeal.
Compl. at 40–42 ¶¶ 17–22; Hoey Decl. Exs. M, N, O, P. Plaintiff indicates that she intends to file a lawsuit against
the NLRB. Pl.’s Reply Mem. at 9.

31

4. OSHA Claims
Plaintiff alleges that Defendant violated OSHA by failing to comply with safety standards
and by firing her in retaliation for filing an OSHA complaint to that effect. Compl. at 55, 59–61.
As Plaintiff knows from her prior suit against 1199, however, there is no private right of action
for employees to enforce OSHA. Von Maack v. 1199SEIU United Healthcare Workers E., 2014
WL 5801349, at *7 (citing Donovan v. Occupational Safety & Health Review Comm’n, 713 F.2d
918, 926 (2d Cir. 1983)); see also U.S. Envtl. Prot. Agency ex rel. McKeown v. Port Auth. of N.Y.
& N.J., 162 F. Supp. 2d 173, 191 (S.D.N.Y.) (“The only provision in OSHA that permits a
private citizen to bring a suit in federal court to enforce a standard is section 655(f), which allows
‘[a]ny person who may be adversely affected by a standard issued under this section . . . at any
time prior to the sixtieth day after such standard is promulgated [to] file a petition challenging
the validity of such standard with the United States court of appeals for the circuit wherein such
person resides or has his principal place of business, for a judicial review of such standard.’”),
aff’d sub nom. McKeown v. Del. Bridge Auth., 23 F. App’x 81 (2d Cir. 2001). Plaintiff’s OSHA
claims are thus dismissed with prejudice.
5. Pharmacy Regulation Claims
Finally, Plaintiff alleges that Defendant violated a number of federal and state regulations
governing pharmacies, including 10 N.Y.C.R.R. § 405.17; N.Y. Educ. Law, Art. 137; 29 C.F.R.
§ 1910.1200; OSHA Directive CPL 02-02-054; and United States Pharmacopeia Chapter 797.
Compl. at 59–61. Yet, as in her prior suit against 1199, Plaintiff has not directed the Court to
any provision creating a private right of action to enforce these regulations. Von Maack v.
1199SEIU United Healthcare Workers E., 2014 WL 5801349, at *7. Plaintiff’s claims
predicated on these regulations are therefore dismissed with prejudice.

32

E. The Court Will Not Enjoin Plaintiff From Filing Future Suits Against Defendant
Without Prior Permission.
Defendant requests that the Court enjoin Plaintiff from filing any further actions against it
without prior permission from the Court. Def.’s Mem. at 23–24. “A district court not only may
but should protect its ability to carry out its constitutional functions against the threat of onerous,
multiplicitous, and baseless litigation.” Abdullah v. Gatto, 773 F.2d 487, 488 (2d Cir. 1985).
Therefore, the Second Circuit has held that “[t]he issuance of a filing injunction is appropriate
when a plaintiff abuse[s] the process of the Courts to harass and annoy others with meritless,
frivolous, vexatious or repetitive . . . proceedings.” Lau v. Meddaugh, 229 F.3d 121, 123 (2d
Cir. 2000) (internal quotation marks omitted).
In determining whether to restrict a litigant’s future access to courts, courts should
consider the following factors:
(1) the litigant’s history of litigation and in particular whether it entailed vexatious,
harassing or duplicative lawsuits; (2) the litigant’s motive in pursuing the litigation, e.g.,
does the litigant have an objective good faith expectation of prevailing?; (3) whether the
litigant is represented by counsel; (4) whether the litigant has caused needless expense to
other parties or has posed an unnecessary burden on the courts and their personnel; and
(5) whether other sanctions would be adequate to protect the courts and other parties.
Safir v. U.S. Lines Inc., 792 F.2d 19, 24 (2d Cir. 1986). Ultimately, the question is “whether a
litigant who has a history of vexatious litigation is likely to continue to abuse the judicial process
and harass other parties.” Id.
In addition to the present lawsuit, Plaintiff has filed against Defendant: a suit in New
York State Court alleging a violation of New York Labor Law § 741; three suits in New York
City Small Claims Court alleging unpaid wages; and two suits for workers’ compensation, one
alleging that the conditions of Defendant’s pharmacy caused her to develop lung diseases and the
other alleging that Defendant retaliated against her. Plaintiff has also filed charges against
Defendant with the NYSDHR, the EEOC, OSHA, and the NLRB. Although these proceedings
33

have revolved around the same universe of facts, Plaintiff’s claims in each action are not entirely
duplicative. Moreover, Plaintiff has not been acting entirely alone—certain of these actions were
instituted with the assistance of an attorney. Finally, although Plaintiff has not on the whole
been successful, her claims in these actions cannot be said to have all been frivolous. Indeed, not
only is Plaintiff granted leave to replead certain of her claims in this action, but the Small Claims
Court found in Plaintiff’s favor on her unpaid wages claim and awarded her damages.
This case is plainly distinguishable from those cited by Defendant. In Iwachiw v. New
York State Department of Motor Vehicles, the plaintiff had filed more than fifteen actions in the
federal and New York state courts; several of his appeals had been dismissed for frivolousness,
failure to comply with the rules or orders of the Court, or lack of appellate jurisdiction; and the
plaintiff had already been warned against filing future frivolous appeals. 396 F.3d 525, 528–29
(2d Cir. 2005). In Safir v. U.S. Lines Inc., the plaintiff spent twenty years litigating claims in an
effort to “block and hinder various business transactions of the defendants.” 792 F.2d at 24.
And in Golub v. Kidder Peabody & Co., the plaintiff’s pattern of litigation “span[ned] two
decades and earned him sanctions from both [the district court] and the Court of Appeals,
including two orders by [the district court] precluding [him] from further filings.” No. 89 Civ.
5903 (WHP), 2010 WL 5422503, at *3 (S.D.N.Y. Dec. 16, 2010).
Although the Court appreciates that Defendant has now had to defend against Plaintiff’s
claims over a period of five years in various fora, the Court is not persuaded that Plaintiff is
motivated by a desire to harass Defendant with frivolous or repetitive proceedings, but rather to
vindicate her perceived rights. The Court does not find, at this juncture, that Plaintiff has abused
the judicial process or harassed Defendant in pursuit of that goal.

34