Male v. Tops Markets, LLC
Filing
36
ORDER denying 28 Motion to Dismiss Amended Complaint. Signed by Hon. Michael A. Telesca on June 13, 2011. (MK)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________________
JULIE E. MALE,
Plaintiff,
08-CV-6234
v.
DECISION and
ORDER
TOPS MARKETS, LLC,
Defendant.
____________________________________________
INTRODUCTION
This
is
Plaintiff,
Julie
E.
Male’s
(“Plaintiff”)
second
attempt to pursue claims based on her employment by the Defendant,
Tops Markets, LLC (“Defendant”). Plaintiff’s first action (“Male
I”) was dismissed because her initial complaint was insufficient
and therefore, it failed to give Defendant notice pursuant to Rule
8 of the Federal Rules of Civil Procedure. See Affirmation of Mark
A.
Moldenhauer,
Esq.,
dated
March
8,
2010,
¶3
(“Moldenhauer
Aff.”)(Docket #30-1). Plaintiff filed an Amended Complaint in Male
I, but this Court found that the Amended Complaint was untimely.
Id. at ¶6.
Plaintiff appealed that decision and commenced this
lawsuit (“Male II”), while her appeal in Male I was still pending.
Id.
¶¶
6,7.
subsequently
The
Court
dismissed
of
Appeals
Plaintiff’s
for
appeal
the
in
Second
Male
I
Circuit
for
her
repeated failure to comply with the rules of the Court. See Male v.
Tops Markets, LLC, 354 Fed. Appx. 514, 2009 WL 4249847, **2 (2d
Cir. 2009).
1
Plaintiff’s initial Complaint in this action, Male II, was
also dismissed
by
this
Court
On
September
15,
2008, because
Plaintiff’s pre-termination claims under the Family and Medical
Leave Act, 29 U.S.C. §§ 2601 et seq. (“FMLA”), American’s with
Disabilities Act, 42 U.S.C. §§ 12101 et seq. (“ADA”) and the New
York Human Rights Law, N.Y. Executive Law §§ 290 et seq. (“NYHRL”)
were barred by the principals of res judicata, as Plaintiff had
previously raised these claims in Male I, which was dismissed with
prejudice. See Moldenhauer Aff. ¶12. The Second Circuit upheld this
determination, but vacated this Court’s dismissal of Plaintiff’s
claim for post-termination retaliation under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and
remanded the case to this Court to determine whether Plaintiff had
adequately plead this claim in the first instance and, if not,
whether to grant Plaintiff leave to amend. See Male v. Tops
Markets, LLC, 2009 WL 4249847 (2d Cir. 2009).
In a Decision and Order dated October 29, 2010, this Court
found that Plaintiff had not plausibly stated a claim for posttermination retaliation under Title VII, and afforded Plaintiff the
opportunity to amend the Complaint to properly assert her claims
for post-termination retaliation. (Docket # 27.) The Court did not
specify under what statutory scheme the claims must be plead,
rather it left the door open for Plaintiff to plead any plausible
claim of post-termination retaliation.
2
Plaintiff filed an Amended
Complaint on November 22, 2010 and now asserts claims for posttermination retaliation under the ADA, FMLA and NYHRL.1
Plaintiff
specifically claims that Defendant unlawfully retaliated against
her after she filed discrimination complaints with the Equal
Employment Opportunity Commission (“EEOC”) and in this Court, by
providing negative references to prospective employers. See Compl.
¶¶ 82-100.
Defendant now moves to dismiss the Amended Complaint pursuant
to
Rules
12(f)
and
12(b)(6)
Procedure. (Docket ## 28, 29).
exceeded this
Court’s
of
the
Federal
Rules
of
Civil
Defendant contends that Plaintiff
Order granting
her
leave
to
amend
the
Complaint and therefore, this Court should grant its Motion to
Strike the entire Amended Complaint.
As explained above, this
Court does not find that Plaintiff exceeded this Court’s Order
granting leave to amend the Complaint.
Accordingly, Defendant’s
Motion to Strike is denied.
Defendant
alternatively
argues
that
Plaintiff’s
Amended
Complaint fails to state a plausible claim for post-termination
retaliation under the ADA, FMLA or NYHRL and that Plaintiff’s
1
Plaintiff’s Amended Complaint also includes factual allegations relating to her
previously dismissed claims for pre-termination discriminatory conduct, for which she was not
granted leave to amend by this Court. See Compl. ¶¶ 11-81. However, Plaintiff has clarified in
her Memorandum of Law opposing Defendant’s Motion to Dismiss, that she included such
allegations as background evidence only, and is not now alleging additional claims based on
conduct that occurred prior to her termination. (Docket #33-1 at 14-15.). Accordingly, to the
extent Plaintiff sought to raise a claim relating to conduct that occurred prior to her termination,
she has now abandoned any such claim.
3
claims are untimely.
For the reasons set forth below, this Court
denies Defendant’s motions.
BACKGROUND
Familiarity with the facts of the case and this Court’s
previous decisions is presumed and only those facts pertinent to
this decision are repeated here.
The Amended Complaint contains
the following, non-conclusory allegations relevant to Plaintiff’s
post-termination retaliation claims: (1) Plaintiff claims she had
certain disabling conditions and that she took FMLA protected leave
while employed by the Defendant; (2) Plaintiff filed discrimination
complaints with the EEOC in 2006, on August 14, 2008 and in this
Court on November 19, 2007 and May 29, 2008; (3) Plaintiff applied
for more than 100 jobs, “interviewed well, and was told she would
be ‘called back,’” but she was not hired; (4) Plaintiff learned
that “a call was made regarding ‘what kind of employee’ she had
been, and [would be];” (5) Plaintiff states that the call occurred
between the hours of 3 and 6 p.m., on an unspecified date; (6) A
“manager or supervisor” of the Defendant told the caller that
Plaintiff “was a good employee for the first couple of years,” but
thereafter “Plaintiff began having ‘personal problems’ that spilled
over into her professional life...[and] Plaintiff ‘missed and was
late to work a lot because of her personal and medical issues.’”
See Compl. at ¶¶ 13-17, 82-100.
4
DISCUSSION
To survive a Rule 12(b)(6) motion to dismiss, a complaint must
plead “enough facts to state a claim to relief that is plausible on
its face.” See Ruotolo v. City of New York, 514 F.3d 184, 188 (2d
Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007)). The Court “‘must accept as true all allegations in the
complaint and draw all reasonable inferences in favor of the
non-moving party.’” See Vietnam Ass’n for Victims of Agent Orange
v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir.2008) (quoting Gorman
v. Consol. Edison Corp., 488 F.3d 586, 591-92 (2d Cir.2007)).
However, the court may disregard a plaintiff’s “legal conclusions,
deductions or opinions couched as factual allegations.” See, e.g.,
In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir.2007)
(citation omitted).
“[O]nce
supported
by
a
claim
has
been
stated
showing
any
set
of
adequately,
facts
consistent
it
may
with
be
the
allegations in the complaint.” See Twombly, 550 U.S. at 579. The
Court, therefore, does not require “heightened fact pleading of
specifics, but only enough facts to state a claim to relief that is
plausible on its face.” See id. at 569.
“When a federal court
reviews the sufficiency of a complaint, before the reception of any
evidence either by affidavit or admissions, its task is necessarily
a limited one. The issue is not whether a plaintiff will ultimately
prevail but whether the claimant is entitled to offer evidence to
5
support the claims.” See Scheuer v. Rhodes,416 U.S. 232, 236
(1974).
A. Plaintiff’s Negative Reference Claims
Plaintiff’s claims for post-termination retaliation under the
ADA, FMLA and the NYHRL require that Plaintiff plausibly state
facts
in
support
of
the
following
elements:
(1)
Plaintiff
participated in a protected activity known to the Defendant; (2)
Plaintiff experienced an adverse employment action; and (3) a
causal connection between the protected activity and the adverse
action. See Holt v. KMI-Continental, Inc., 95 F.3d 123, 130 (2d
Cir. 1996); see also Perry v. NYSARC 2011 WL 2117950 (2d Cir.
2011)(citing Holt and applying the evidentiary standard developed
in Title VII cases to cases under the ADA and FMLA); See Weissman
v.
Dawn
Joy
Fashions,
Inc.,
214
F.3d
224,
234
(2d
Cir.
2000)(applying the same standards to a retaliation claim under the
ADA and NYHRL).
It is undisputed that Plaintiff engaged in ADA and FMLA
protected activities by taking FMLA protected leave, by filing a
discrimination charge with the EEOC in 2006 and on August 14, 2008,
and by filing two separate law suits in this Court, on November 19,
2007 and May 29, 2008.
Accordingly, the issues are whether the
Plaintiff has plausibly alleged in her Amended Complaint that she
was subjected to an adverse action based on a negative reference
and whether the alleged negative reference is causally related to
6
the protected activity.
Defendant
argues
that
Plaintiff
deficiencies in her Amended Complaint.
has
not
cured
these
Specifically, Defendant
argues that Plaintiff has not alleged facts to plausibly support
her claim that the alleged negative reference was an “adverse
action.” See Def. Mem. of Law at 11-12. Defendant further contends
that Plaintiff has not alleged facts to support causation, as she
does state when the alleged negative reference occurred in relation
to
the
protected
activities; and
because in
order
to
allege
causation through temporal proximity, the alleged events must occur
“very close” in time.
Id. at 13 (citing) Clark County School Dist.
v. Breeden, 532 U.S. 268, 273 (2001).
This Court finds that Plaintiff’s allegations, at least at the
pleading stage, are sufficient to support her claims for posttermination retaliation.
This Court notes that Plaintiff is not
required to prove her claims at this point, she is only required to
state facts which support a “plausible” claim for relief.
Plaintiff
alleges
that
the
Defendant,
when
asked
about
Plaintiff’s employment history, stated that Plaintiff “was a good
employee for the first couple of years,” but thereafter “Plaintiff
began
having
‘personal
problems’
that
spilled
over
into
her
professional life...[and] Plaintiff ‘missed and was late to work a
lot because of her personal and medical issues.’” See Compl. at ¶¶
82-100.
This Court finds these facts, when taken as true and
7
viewed in the light most favorable to the Plaintiff, plausibly
state that the negative reference was an “adverse action.”
First,
the
alleged
statement
negatively
refers
Plaintiff’s absences due to her “medical issues.”
to
the
A reasonable
inference is that the Defendant was referring to absences which
Plaintiff allegedly took under the FMLA or because of her alleged
disability.
It
is
reasonable
that
such
a
statement
to
a
prospective employer would negatively affect a person’s ability to
secure employment, and that the possibility of an employer uttering
such a statement would discourage an employee from exercising his
or her rights under the ADA, FMLA or NYHRL. See Burlington Northern
and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)(“In the
present context [materially adverse] means that the employer's
actions must be harmful to the point that they could well dissuade
a
reasonable
worker
from
making
or
supporting
a
charge
of
discrimination.”); see also Jute v. Hamilton Sundstrand Corp., 420
F.3d 166, 178 (2d Cir. 2005)(holding that a former employer’s false
statement to a prospective employer, that he could not discuss the
plaintiff because she “had a lawsuit pending,” was sufficient for
a reasonable jury to conclude that plaintiff was the victim of a
retaliatory reference).
While the statement that Plaintiff took
absences due to her personal and medical issues may have been true,
if Plaintiff can prove the Defendant made such a statement to a
prospective employer in retaliation for the Plaintiff’s exercising
8
her rights under the FMLA or the ADA, such a statement may violate
the anti-retaliation provisions of the ADA, FMLA and NYHRL.
Defendant
makes
several
other
arguments
relating
to
the
factual content of the alleged negative reference, for example,
that Plaintiff has not stated that the alleged caller was actually
a prospective employer. This Court, citing Jute, has previously
stated that there are “no bright-line rules” for determining
whether a negative reference amounts to an adverse employment
action. See October 29, 2010 Decision and Order, Docket #25. In
Jute, the Second Circuit also stated that “courts must pore over
each case to determine whether the challenged employment action
reaches the level of adverse.” See Jute, 420 F.3d at 178 (quoting
Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir.1997)).
Accordingly,
the
issue
is
highly
factual;
and,
as
Plaintiff
plausibly states that the alleged negative reference could amount
to
an
adverse
action,
this
Court
finds
Defendant’s
factual
arguments unavailing and that dismissal is inappropriate at this
stage.
With respect to the issue of causation, Defendant correctly
argues
that
Plaintiff
has
not
plausibly
alleged
a
temporal
proximity between the protected activities and the alleged negative
references, because she has not alleged sufficient facts for this
Court to determine when the latter occurred.
However, Plaintiff
may allege causation through facts other than temporal proximity.
9
See Perry v. NYSARC, Inc., 2011 WL 2117950, *3 (2d Cir. May 27,
2001).
And, when viewed in the light most favorable to the
Plaintiff, this Court finds that Plaintiff has plausibly alleged a
causal connection.
The FMLA protects an employee’s right to be free from
retaliation for taking temporary absences from work for serious
health conditions. See 29 U.S.C. § 2601(a)(4). The ADA protects an
employee’s right to be free from discriminatory retaliation based
on that person’s disability. See 42 U.S.C. § 12182(a). Plaintiff
alleges that she exercised her rights under the FMLA and later
filed discrimination charges in an attempt to protect her rights
under both the FMLA and ADA based on certain health conditions.
Defendant’s negative referrence to her absences related to “medical
issues”
when
discussing
her
attributes
as
an
employee,
is
sufficient for this Court to infer, at least at the pleading stage,
that the Plaintiff’s exercise of her rights under these statutes is
causally connected to the negative reference. As this Court noted
in its October 29, 2010 Decision and Order, Plaintiff may plausibly
state the element of causation by alleging “that the negative
recommendation occurred shortly after the proceeding began, or that
the Defendant made a reference to the proceeding in a way that
reflected poorly on the Plaintiff.” (Docket #25 at 8)(emphasis
added).
with
While not commenting on the strength of Plaintiff’s case
respect
to
this
element,
10
this
Court
finds
that
it
is
sufficiently plausible to infer causation at the pleading stage.
B. Statute of Limitations
Defendant also argues that Plaintiff’s claims are barred by
the
applicable
statutes
of
limitations.
With
respect
to
Plaintiff’s ADA claim, Defendant argues that Plaintiff’s Amended
Complaint was filed more than 90 days after Plaintiff received a
notice of right to sue from the EEOC.
See Def. Mem. of Law at 14.
However, as the parties do not dispute that Plaintiff filed the
initial Complaint under Title VII within the applicable 90 day
period, the fact that her allegations now fall under a different
statutory scheme do not make her claims untimely.
Rule 15(c) of the Federal Rules of Civil Procedure states
that “an amendment of a pleading relates back to the date of the
original pleading when ... the claim ... asserted in the amended
pleading arose out of the conduct, transaction, or occurrence set
forth or attempted to be set forth in the original pleading....”
(emphasis added). Here, the factual allegations are essentially the
same,
except
for
the
fact
that
Plaintiff
has
now
included
sufficient factual allegations for this Court to determine that she
has stated a plausible claim for relief and she has alleged such
claims under the ADA, FMLA and NYHRL. See Stevelman v. Alias
Research Inc.,174 F.3d 79, 86-87 (2d Cir. 1999)(“Under Fed.R.Civ.P.
15(c), the central inquiry is whether adequate notice of the
matters raised in the amended pleading has been given to the
11
opposing party within the statute of limitations by the general
fact situation alleged in the original pleading....Where no new
cause of action is alleged, as here, this Court liberally grants
relation back under Rule 15(c).”)(internal citations and quotations
omitted).
In this case, Defendant was generally aware of the
factual circumstances that gave rise to Plaintiff’s claims, that
she was given bad recommendations in retaliation for engaging in a
protected activity.
While Plaintiff’s initial Complaint did not
state a plausible claim for relief, it was sufficient for the
allegations
in
her
Amended
Complaint
to
relate
back
for
the
purposes of Rule 15(c).
With respect to Plaintiff’s claims under the FMLA, defendant
correctly points out that the presumptive statute of limitations
for such an action is 2 years. See 29 U.S.C.A. § 2617(c).
Plaintiff
argues
that
Defendant’s
actions
were
However,
“willful”
and
therefore, they are subject to a 3 year limitations period pursuant
to 29 U.S.C.A. § 2617 (c)(2).
The Second Circuit has stated that
under the FMLA “an employer acts willfully when he or she knew or
showed reckless disregard for the matter of whether its conduct was
prohibited by the [statute].” See Porter v. New York University
School of Law, 392 F.3d 530, 532 (2d Cir. 2004). Based on the facts
as stated in the Complaint, it is plausible that Defendant’s
actions were
willful.
Accordingly,
this
Court
finds
that
decision on this issue is more appropriate following discovery.
12
a
Therefore,
this
Court
denies
Defendant’s
motion
to
dismiss
Plaintiff’s FMLA claim as untimely, without prejudice to renew
following discovery on this issue.
CONCLUSION
For the reasons set forth above, this Court denies Defendant’s
Motion to Dismiss and Motion to Strike.
Dismiss
Plaintiff’s
claim
for
Defendant’s Motion to
retaliation
under
the
FMLA
as
untimely is denied without prejudice to renew.
ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:
Rochester, New York
June 13, 2011
13
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