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assessing statute of limitations based on the date the first amended complaint was filed, because under Fed.R.Civ.P. 15(c), the second amended complaint shared a "common core of operative facts" with the earlier timely-filed complaint
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00 CIV. 8834 (DLC)
December 28, 2001
Attorney For Plaintiff, Gregory Antollino 588 Broadway, Suite 904 New York, NY.
Attorney For Defendant, Stephanie E. Sowell, J.P. Morgan Chase Legal Department, One Chase Manhattan Plaza, 26th Floor, New York, NY.
OPINION AND ORDER
Plaintiff Chandrawattie Kamtaprassad ("Kamtaprassad") brings this employment discrimination action against defendant The Chase Manhattan Corporation ("Chase"), alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (the "ADA"), the New York City Human Rights Law, Administrative Code § 8-502(a) (the "NYCHRL"), and the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (the "FMLA"). Defendant Chase now moves to dismiss the Second Amended Complaint in its entirety because there is no jurisdiction over the ADA or the NYCHRL claims, and plaintiff's allegations under the FMLA are both time-barred and fail to state a claim. For the reasons that follow, defendant's motion to dismiss the Second Amended Complaint is granted in part.
This case was originally filed by the plaintiff, pro se, against Chase Manhattan Bank. After plaintiff retained counsel, the name of defendant in the action was changed to "The Chase Manhattan Corp."
BACKGROUND
The facts as alleged by the plaintiff in her Second Amended Complaint are as follows. Plaintiff Kamtaprassad is disabled by depression. On January 2, 1990, plaintiff was hired by defendant Chase to work as a bank teller. She was promoted to the position of head teller at Branch 499 in Richmond Hill in 1996, where she was supervised by Assistant Manager Bibi Rodriguez.
During the first half of 1997, plaintiff was absent from work for five days because of "serious health conditions." Kamtaprassad alleges that she "provided medical documentation" for these absences, although such documentation was never requested by Chase.
Plaintiff also alleges that during the first half of 1997, defendant began to treat Kamtaprassad differently from other Chase employees. Specifically, plaintiff alleges that in February 1997, the Manager of Branch 499, Sanjay Mukhi, removed her from the head teller position and sent her to work as a customer service representative at another branch. In June 1997, Ms. Rodriguez sent Kamtaprassad to a different branch to assist in the customer service department, and then told her on July 3 that she was to resume her duties at Branch 499 that day. On August 13, 1997, plaintiff was told by Ms. Rodriguez to report to Branch 327 to begin work as a teller. Kamtaprassad alleges that during this time of movement between bank branches and changes in job responsibilities, her job performance was evaluated based on monthly goals not applicable to her changing duties.
On August 29, 1997, Kamtaprassad took a vacation, returning to Branch 499 on September 15. Plaintiff alleges that upon her return from this vacation, she noticed a "distinct change" in the attitude of Assistant Manager Rodriguez towards her. Specifically, she alleges that Ms. Rodriguez became "very confrontational and hostile."
On October 7, 1997, Ms. Rodriguez presented Kamtaprassad with a warning letter stating that the plaintiff had five instances of unscheduled leave in the past twelve months that were not medically certified. The letter was not pre-approved by Chase's Human Resources Department, as required by Chase regulations. After being presented with the warning letter, plaintiff alleges that she became "distraught, lethargic, and sick, " her condition becoming aggravated to the point that she took leave from work, returning on October 20, 1997. Upon her return, Mr. Mukhi moved plaintiff from customer service back to the teller area. On November 1, Kamtaprassad took a disability leave due to her medical condition. Plaintiff's doctor wrote letters to Chase on November 1 and November 28, 1997, and January 26, and March 31, 1998, describing her progress over the course of her disability leave. In the March 31 letter, Kamtaprassad's doctor informed Chase that she would be able to return to work by May 18, 1998, "at a different location starting at half time for the first few months." Sometime in May of 1998, plaintiff spoke with Sarah Noone, a Chase human resources representative, who informed her that her position had been filled. Kamtaprassad was told that she had a two month unpaid leave to seek alternative employment. Plaintiff contacted One Chase Plaza, to which she had been referred by Ms. Noone, but was referred back to the human resources department. On June 3, 1998, "less than two months into her job search," Kamtaprassad received a termination letter from Chase.
DISCUSSION
A court may dismiss an action pursuant to Rule 12(b)(6), Fed.R.Civ.P., only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'"Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In considering the motion, the court must "accept as true all allegations in the complaint," Hayden v. County of Nassau, 180 F.3d 42, 47 (2d Cir. 1999), "consider documents attached to or incorporated by reference in the complaint," Parsky, 140 F.3d at 440, and "draw all reasonable inferences in the plaintiff's favor."Jackson Nat'l Life Ins. v. Merrill Lynch Co., 32 F.3d 697, 699-700 (2d Cir. 1994). The court can dismiss the claim only if, assuming all facts alleged to be true, the plaintiff still fails to plead the basic elements of a cause of action.
A. ADA Claim
Defendant moves to dismiss Kamtaprassad's ADA claim for failure to file her lawsuit in federal court within 90 days of receiving her notice of a right to sue from the Equal Employment Opportunity Commission ("EEOC"). Section 12117(a) of Title 42, United States Code, makes the procedural requirements set out in 42 U.S.C. § 2000e-5 applicable to ADA claims. 42 U.S.C. § 12117(a). Section 2000e-5 of Title 42, United States Code, requires that any Title VII case be filed within 90 days of receipt of a right to sue letter from the EEOC. 42 U.S.C. § 2000e-5.See Sherlock v. Montefiore Medical Center, 84 F.3d 522, 525 (2d Cir. 1996) (applying statutory provision to Title VII and ADEA claims). Kamtaprassad received a right to sue letter on July 13, 2000. Since her complaint — including notice that she sought relief under the ADA — was received by the pro se clerk's office on October 5, 2000, it was timely filed. See Toliver v. County of Sullivan, 841 F.2d 41, 42 (2d Cir. 1988).
Defendant also argues that any claim under the ADA relating to allegedly discriminatory treatment before August 28, 1997, is time-barred. In order to claim an unlawful employment action under the ADA in New York, the plaintiff must have filed an action with the EEOC "within three hundred days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a); see also Flaherty v. Metromail Corp., 235 F.3d 133, 136 n. 1 (2d Cir. 2000) (applying statute to Title VII and ADEA claims). The 300-day period effectively acts as a statute of limitations. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998). The parties do not dispute that Kamtaprassad filed her charge of discrimination with the EEOC on June 23, 1998.
Kamtaprassad argues that all of her claims are timely under the ADA because they constitute part of a continuing violation by Chase. The continuing violation exception "extends the limitations period for all claims of discriminatory acts committed under an ongoing policy of discrimination." Id. (citation omitted) (emphasis in original). If a plaintiff files a charge of discrimination that is timely as to any incident forming part of an ongoing discriminatory policy, her claims of other discriminatory acts under that policy are timely even if, standing alone, they would be untimely. Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (citing Lambert v. Genesee Hospital, 10 F.3d 46, 53 (2d Cir. 1993)), petition for cert. filed, 70 U.S.L.W. 3163 (U.S. Aug. 29, 2001) (No. 01-373)
The continuing violation exception generally "applies to cases involving specific discriminatory policies or mechanisms such as discriminatory seniority lists, Lambert, 10 F.3d at 53, or employment tests. A continuing violation may also exist in the face of "specific and related instances of discrimination" where those instances are "sufficiently repetitious," and permitted by the employer "to continue unremedied for so long that its inaction may reasonably be viewed as tantamount to a policy or practice." Fitzgerald, 251 F.3d at 362. The exception will not apply, however, where those acts are "so `isolated in time from each other or from the timely allegations as to break the asserted continuum of discrimination.'" Id. at 359 (citation omitted). Acts that are "completed" or "discrete," such as termination, discontinuance of a particular assignment, job transfers, Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997), or repeated failures to promote, Meckenberg v. New York City Off-Track Betting, 42 F. Supp.2d 359, 371-72 (S.D.N.Y. 1999), are not acts of a continuing nature. See Pauling v. Secretary of the Interior, 960 F. Supp. 793, 801-02 (S.D.N.Y. 1997) (DLC). To allege a continuing violation, "the claimant must allege both the existence of an ongoing policy of discrimination and some non-time-barred acts taken in furtherance of that policy." Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999). A claim cannot be rendered timely by "the mere continuation of the claimant's employment" nor where the plaintiff "continues to feel the effects of a time-barred discriminatory act." Id.
Kamtaprassad's allegations of discriminatory conduct by Chase after August 28, 1997, include a hostile attitude towards her by Ms. Rodriguez, the warning letter issued on October 7, 1997, her movement by Mr. Mukhi from the customer service department at Branch 499 back to the teller area sometime after October 20, 1997, and her termination in June of 1998. Plaintiff's allegations of discriminatory treatment by Chase prior to August 28, 1997, include approximately four transfers between different bank branches and, in some cases, changes in job responsibilities along with those transfers. The job transfers that occurred during the first half of 1997 were discrete employment actions and not acts of a continuing nature. See Lightfoot, 110 F.3d at 907. In any event, they are not sufficiently related to the discriminatory employment actions alleged to have occurred after August 28, 1997, to state a continuing violation. As such, plaintiff's cause of action under the ADA is time barred, except as to events occurring after August 28, 1997.
B. NYCHRL claim
Relying on the election of remedies doctrine, Chase argues that because Kamtaprassad filed a complaint with the New York State Division of Human Rights, her NYCHRL claim must be dismissed because this Court lacks subject matter jurisdiction. Pursuant to Title 8-502 of the NYCHRL:
any person claiming to be aggrieved by an unlawful discriminatory practice . . . shall have a cause of action in any court of competent jurisdiction . . . unless such person has filed a complaint with the city commission on human rights or with the state division of human rights with respect to such alleged unlawful discriminatory practice.
NYC Admin. Code § 8-502(a). This law "deprives federal courts of subject matter jurisdiction where a plaintiff previously elected to proceed in an administrative forum." Chudnovsky v. Prudential Securities, Inc., No. 98 Civ. 7753 (SAS), 2000 WL 1576876, at 4 (S.D.N.Y. Oct. 23, 2000); see also Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000) (applying parallel state law provision); Moodie v. Federal Reserve Bank of New York, 58 F.3d 879, 883 (2d Cir. 1995) (same).
Kamtaprassad concedes that she cannot assert claims of discrimination that have already been reviewed and resolved by the State Division of Human Rights. She contends, however, that the acts that form the basis of her FMLA claim — a denial of leave and retaliation — are not barred by the election of remedies doctrine.
The election of remedies doctrine prevents pursuit in court of any claims arising from the same set of facts for which the plaintiff sought relief in the administrative forum.
[T]he particular legal theory asserted in the administrative charge is irrelevant to a court's determination of subject matter jurisdiction. Rather, the relevant inquiry is whether the facts alleged in the administrative charge are the same as those alleged in the federal court lawsuit.Chudnovsky, 2000 WL 1576876, at 5 Plaintiff's Division of Human Rights charge refers to her disability, the transfers between branches and changes in responsibilities she endured while employed by Chase, the warning letter regarding her five unscheduled absences, and her allegedly improper termination. Because the plaintiff's NYCHRL claim arises out of the identical facts presented to the State Division of Human Rights, it is dismissed.
C. FMLA claim
Finally, defendant argues that Kamtaprassad's FMLA claim must be dismissed because (1) it is time-barred, and (2) the Second Amended Complaint fails to state a claim for relief under the FMLA. The FMLA contains two statute of limitations provisions: it must be filed three years from the last event constituting a willful violation, and two years from the last event constituting a violation in all other cases. Because Kamtaprassad's Second Amended Complaint alleges a willful violation, the three year limitations period applies.
Kamtaprassad's termination, which occurred on June 3, 1998, is the last event alleged to constitute a violation of the FMLA. She claims that she was fired in retahation for requesting leave to which she was entitled under the FMLA. The first time plaintiff asserted an FMLA claim was in her Second Amended Complaint, which was filed on September 5, 2001, more than three years after her termination. Plaintiff contends, however, that her FMLA claim is timely because it relates back to her First Amended Complaint, which was filed on January 17, 2001.
The defendant contends that the timeliness of the FMLA claim should be measured from those days in 1997 on which the plaintiff took unscheduled leave. For purposes of this motion, it is appropriate to measure the timeliness based on the allegation of retaliation in the Second Amended Complaint.
The question of relation back is governed by Rule 15(c), Fed.R.Civ.P. Rule 15(c) states:
An amendment of a pleading relates back to the date of the original pleading when . . . the claim or defense 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.
Rule 15(c)(2), Fed.R.Civ.P. "Provided the amended pleading is based on the same series of transactions and occurrences alleged in the original pleading, the revised pleading will relate back to the original pleading, even where the revised pleading contains legal theories not included in the original." White v. White Rose Food, 128 F.3d 110, 116 (2d Cir. 1997)
Both the First and Second Amended Complaints filed by plaintiff in this action contain a common core of operative facts. While the First did not contain a claim under the FMLA, it did contain, by direct reference and through attached documents, the same factual allegations contained in her Second. The Second Circuit has warned that "[w]hen a suit is filed in a federal court under the Rules, the defendant knows that the whole transaction described in it will be fully sifted, by amendment if need be." Siegel v. Converters Transportation, Inc., 714 F.2d 213, 216 (2d Cir. 1983). The "gist" of plaintiff's Amended Complaint and Second Amended Complaint is Chase's allegedly discriminatory actions in response to plaintiff's absences and disability leave. Id. Moreover, because plaintiff was not represented by counsel when she filed her original and First Amended Complaints, those pleadings should be read "liberally and interpret[ed] . . . to raise the strongest arguments that they suggest."McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (citation omitted).
Finally, the defendant argues that Kamtaprassad's Second Amended Complaint fails to state a claim for relief under the FMLA. To state a valid claim under the FMLA, Kamtaprassad must plead facts showing that (1) she is an eligible employee; (2) Chase is a covered employer; (3) she was entitled to leave under the FMLA because of a serious health condition; and (4) she gave notice to Chase of her intention to take leave. See Baber v. Runyon, No. 97 Civ. 4798 (DLC), 1998 WL 912065, at 8 (S.D.N Y Dec. 30, 1998) (citing Vicioso v. Pisa Brothers, Inc., No. 98 Civ. 2027 (RWS), 1998 WL 355415, at 2 (S.D.N.Y. July 1, 1998)). Chase does not dispute that Kamtaprassad is an eligible employee under the FMLA, nor that it is a covered employer. Chase does contend, however, that Kamtaprassad has failed to specify any "serious health condition" that would entitle her to the protection of the FMLA, and to allege that she gave adequate notice of her intention to treat her absences as FMLA leave.
The FMLA entitles an eligible employee to unpaid leave under the Act if she is unable to work due to a "serious health condition." 29 U.S.C. § 2612(a)(1)(D). The FMLA defines a serious health condition" to include "an illness, injury, impairment, or physical or mental condition that involves . . . continuing treatment by a health care provider." 29 U.S.C. § 2611(11); 29 C.F.R. § 825.114(a)(2). Furthermore, an employee requiring FMLA leave for a serious health condition involving continuing treatment by a health care provider must demonstrate a period of incapacity lasting more than three consecutive days. See 29 C.F.R. § 825.114(a)(2)(i). "Incapacity" includes the inability to work, attend school or perform other regular daily activities due to the serious health condition, treatment therefor, or recovery therefrom." 29 C.F.R. § 825.114(a)(2)(i). See also Vicioso, 1998 WL 355415, at 3.
In her Second Amended Complaint, Kamtaprassad alleges that she is "disabled with Depression." She further alleges that she "went out on a disability leave due to her medical condition," that the leave lasted for approximately five months, and that her doctor wrote letters to the defendant during the leave. These allegations sufficiently allege a serious health condition.
Plaintiff's allegations are also sufficient to allege that she provided notice of her intention to take leave. Under the FMLA, an employee must where possible provide her employer with at least 30 days' notice for planned medical treatment. 29 U.S.C. § 2612(e)(1). Where treatment must begin in less than 30 days or the leave was unforeseeable, an employee must notify her employer as soon as practicable. 29 U.S.C. § 2612(e)(1); 29 C.F.R. § 825.302(a); 29 C.F.R. § 825.303(a). "`As soon as practicable' means as soon as both possible and practical, taking into account all the facts and circumstances in the individual case . . . [It] ordinarily would mean at least verbal notification to the employer within one or two business days of when the need for leave becomes known to the employee." 29 C.F.R. § 825.302(b). An employee need not expressly assert rights under the FMLA or even mention the FMLA when requesting leave. The employee must provide sufficient notice, however, "to make the employer aware that the employee needs FMLA-qualifying leave, and the anticipated timing and duration of the leave." 29 C.F.R. § 825.302(c). In determining whether an employee has provided adequate notice to her employer of the need for FMLA leave, "the critical question is whether the information imparted to the employer is sufficient to reasonably apprise it of the employee's request to take time off for a serious health condition." Miller v. Venator Group, Inc., No. 00 Civ. 0454 (HB), 2000 WL 648186, at 3 (S.D.N.Y. May 18, 2000) (citing Manuel v. Westlake Polymers Corp., 66 F.3d 758, 764 (5th Cir. 1995)). The letters from plaintiff's doctor, which are attached to her First Amended Complaint and include one written on the day her disability leave began, identified the plaintiff as totally disabled from depression and gave a prediction of the date on which she would be able to resume her employment. These incorporated allegations are adequate to permit plaintiff's FMLA claim to proceed.
CONCLUSION
Defendant's motion to dismiss is granted in part and denied in part. Defendant's motion to dismiss plaintiff's claim under the Americans with Disabilities Act is granted as to events occurring before August 28, 1997. Defendant's motion to dismiss plaintiff's New York City Human Rights Law claim is granted in its entirety. Defendant's motion to dismiss plaintiff's Family and Medical Leave Act claim is denied.
SO ORDERED