Marotta v. Monroe County (Monroe Comm. Hospital)

Filing 25

DECISION & ORDER Marotta's motion to amend her complaint and for the appointment of counsel 19 is granted in part and denied in part. Specifically, Marotta's motion to amend her complaint is granted. Marotta is directed to serve and file an Amended Complaint by no later than 2/16/2016, in accordance with the directions herein. Defendant shall answer or move to dismiss the Amended Complaint in accordance with Rule 12 of the Federal Rules of Civil Procedure. Marotta's motion fo r appointment of counsel is denied without prejudice at this time. It is Marotta's responsibility to retain an attorney or press forward with this lawsuit pro se. 28 U.S.C. § 1654. Further, defendant's motion for an order sta ying the deadlines in the previous scheduling order pending the district court's determination on defendant's motion for judgment on the pleadings 16 is denied. A status conference will be held with the undersigned at 2310 U.S. Courthouse, 100 State Street, Rochester, New York on 4/7/2016 at 11:40 AM to set new scheduling deadlines for discovery and dispositive motions. Signed by Hon. Marian W. Payson on 1/14/2016. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
MARI MAROTTA,
DECISION & ORDER
Plaintiff,
14-CV-6310W
v.
MONROE COUNTY
(Monroe Community Hospital),
Defendant.
_______________________________________

Plaintiff Mari Marotta (“Marotta”) filed a pro se complaint against defendant
Monroe County alleging discrimination under the Age Discrimination in Employment Act
(“ADEA”), 29 U.S.C. § 621 et seq., arising from her employment and termination of
employment with Monroe Community Hospital (“MCH”). (Docket # 1). Currently pending
before this Court is Marotta’s second motion for appointment of counsel and first motion to
amend her complaint. (Docket # 19).
Marotta’s form pro se complaint indicates that she is asserting claims for failure
to promote, harassment, wrongful termination, and denial of vacation compensation. (Id.).
According to her complaint, Marotta was fifty-six when she was hired by MCH in 2010. (Id.).
In the section of the complaint requesting the complainant to provide a brief statement of “the
facts of [the] case,” Marotta alleges:
I believe I was wrongfully terminated and deprived of earned
vacation compensation. Documentation will assist in my
allegations of being bribed and/or coerced into resigning my
position. When I refused to sign proposal #1, I was offered
proposal #2 which I also refused. Therefore, I was not

compensated for unused vacation and my unemployment benefits
were contested. After appeal, I was awarded my benefits.
(Id.).
Defendant answered the complaint on January 8, 2015. (Docket # 6). This Court
conducted a Rule 16 scheduling conference and issued a scheduling order on February 5, 2015.
(Docket # 9). Pursuant to that order, discovery was to be completed by May 22, 2015, and
dispositive motions were to be filed by no later than July 31, 2015. (Id.). Approximately one
month before the discovery deadline, defendant filed a motion for judgment on the pleadings.
(Docket # 15). United States District Judge Elizabeth A. Wolford granted Marotta’s request to
adjourn briefing and determination on that motion pending this Court’s decision on Marotta’s
motion to amend her complaint and for appointment of counsel. (Docket # 20). Marotta’s
motion to amend does not seek to add new claims or defendants; rather, it attempts to address the
purported deficiencies in her original complaint identified by MCH in its motion for judgment on
the pleadings. (Docket # 19).
Defendant opposes her motion to amend on the grounds of futility. (Docket # 23).
Defendant argues that Marotta’s submission does not allege that she was terminated for her
membership in a protected class, but rather simply explains her disagreement with the
termination decision. (Docket # 23-1 at 3).
This District’s Local Rules require that motions to amend be accompanied by the
proposed amended pleading. W.D.N.Y. Local Rule 15(a). Marotta has not submitted a copy of
her proposed amended complaint, making this Court’s review of her motion more difficult. Of
course, Marotta is litigating this action pro se, and “the failure to attach a proposed amended
complaint to the motion is not necessarily fatal” where the basis for the proposed amendment

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may be ascertained from the moving papers. Murray v. New York, 604 F. Supp. 2d 581, 588
(W.D.N.Y. 2009).
In this case, Marotta’s motion consists of a short motion and nine exhibits.
(Docket # 19). Her motion primarily summarizes the nine attached exhibits, the first of which is
an eight-paragraph narrative signed by Marotta on May 18, 2015 describing in considerable
detail the alleged circumstances of her termination. (Id. at 4-5). The narrative alleges that she
was fired for transporting an MCH resident to a medical appointment with an outside provider on
July 12, 2013. (Id.). The statement further asserts that Marotta’s supervisor approved Marotta’s
actions in advance. (Id.). According to Marotta, she was terminated for the incident, but the
supervisor was not. (Id.).
Marotta’s motion, to which the narrative statement is appended as Exhibit 1,
states that her notice of termination from MCH (appended as Exhibit 6) states that she was
terminated for transporting the resident off MCH premises without authorization on July 12,
2013. (Id. at 2). In her motion, Marotta counters that she received authorization from her direct
supervisor, whom she identifies by name, to transport the resident. (Id.). Marotta further alleges
that her supervisor, who was in her twenties, received a three-day disciplinary suspension, and
Marotta, by contrast, was terminated. (Id.).
Defendant’s opposition papers do not address these age-related factual assertions.
Indeed, in its motion for judgment on the pleadings, defendant argues that Marotta’s original pro
se complaint is deficient because:
Marotta alleges she is a member of a protected class, and her
employment was terminated. Beyond these assertions, nothing in
her Complaint is relevant to a claim of discrimination under the
ADEA. She does not allege that she was replaced by a younger
worker, nor that any younger worker was not terminated for
committing the same acts as her. Marotta’s Complaint fails to
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describe the circumstances that led to her termination. . . .
Marotta’s Complaint does not identify any ground supporting an
inference that her termination was based on her age[.]
(Docket # 15-4 at 7). Marotta’s current motion clearly attempts to address these purported
deficiencies. Her moving papers assert that her much younger supervisor, who authorized the
very act that precipitated Marotta’s termination, was only suspended, while Marotta herself was
terminated. Marotta has also drafted and included in her motion a signed narrative statement
describing the circumstances of the termination. This Court’s review of Marotta’s motion
reveals an apparently adequate alleged factual basis to support an inference that her termination
was based on her age. See Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009) (“[i]t is
well-settled that an inference of discriminatory intent may be derived from a variety of
circumstances, including, but not limited to . . . ‘the more favorable treatment of employees not
in the protected group[,] or the sequence of events leading to the plaintiff’s discharge’”) (quoting
Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994), superseded by statute on
other grounds, N.Y.C. Local L. No. 85, as recognized in Mihalik v. Credit Agricole Cheuvreax
N. Am., Inc., 715 F.3d 102, 108-09 (2d Cir. 2013). See Tongring v. Bronx Cmty. Coll. of City
Univ. of New York Sys., 2014 WL 463616, *5 (S.D.N.Y. 2014) (denying motion to dismiss
ADEA claim where complaint contained factual allegations of “more favorable treatment of
employees not in the protected group [and] the sequence of events leading to the plaintiff’s
discharge”). Accordingly, this Court cannot conclude that Marotta’s contemplated amendment
would be futile.
Of course, Marotta has not submitted a proposed amended complaint. Marotta is
directed to serve and file an amended complaint by no later than February 16, 2016, which will
completely replace her original complaint. See W.D.N.Y. Local Rule 15(a) (“[t]he proposed

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amended pleading must be a complete pleading superseding the original pleading in all
respects[;] [n]o portion of the prior pleading shall be incorporated into the proposed amended
pleading by reference”). Her amended complaint should include the age discrimination claims
that she is asserting, accompanied by all of the factual allegations she wishes to include in
support of her claims. Marotta should not rely upon exhibits to provide factual allegations she
wishes to include in her complaint, but should include any of those factual assertions in her
amended complaint. The allegations should be clear and concise and provide defendant with
adequate notice to understand and respond to the claims. Defendant shall answer or move to
dismiss the amended complaint in accordance with Rule 12 of the Federal Rules of Civil
Procedure.
Marotta’s renewed motion for appointment of counsel is denied. (Docket # 19).
Although she has included some additional allegations of indigence, she has not demonstrated a
likelihood of success on the merits or an inability to litigate this action pro se. Accordingly, for
the same reasons that the Court denied her previous application (see Docket # 14), her pending
motion for appointment of counsel is denied without prejudice.
This Court shall conduct a status conference with Marotta and counsel for
defendant on April 7, 2016, at 11:40 a.m., in order to set new scheduling deadlines for discovery
and dispositive motions. Defendant’s motion for an order staying the deadlines in the previous
scheduling order pending the district court’s determination on defendant’s motion for judgment
on the pleadings is denied. (Docket # 16).

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CONCLUSION
For the reasons stated above, Marotta’s motion to amend her complaint and for
the appointment of counsel (Docket # 19) is GRANTED in part and DENIED in part.
Specifically, Marotta’s motion to amend her complaint is granted. Marotta is directed to serve
and file an Amended Complaint by no later than February 16, 2016, in accordance with the
directions herein. Defendant shall answer or move to dismiss the Amended Complaint in
accordance with Rule 12 of the Federal Rules of Civil Procedure. Marotta’s motion for
appointment of counsel is denied without prejudice at this time. It is Marotta’s responsibility to
retain an attorney or press forward with this lawsuit pro se. 28 U.S.C. § 1654. Further,
defendant’s motion for an order staying the deadlines in the previous scheduling order pending
the district court’s determination on defendant’s motion for judgment on the pleadings (Docket
# 16) is DENIED.
A status conference will be held with the undersigned at 2310 U.S. Courthouse,
100 State Street, Rochester, New York on April 7, 2016, at 11:40 a.m., to set new scheduling
deadlines for discovery and dispositive motions.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
January 14, 2016

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