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finding a five-month period of time too great to establish causation
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No. 97-C V-1347(JG)
June 9, 2000.
DENNIS ADJEI-BRENYAH, Attorney for Plaintiff.
ELIOT SPITZER, Attorney General of the State of New York. By: Amy L. Abramowitz Assistant Attorney General. Attorney for Defendant
MEMORANDUM AND ORDER
Plaintiff Patricia Lambert seeks to amend her complaint to assert new causes of action and add new defendants. Finding the proposed amendments inconsistent with the Eleventh Amendment, Federal Rule of Civil Procedure 15, or both, I deny the motion.
BACKGROUND
The factual background to this case is fully described in Lambert v. New York State Office of Mental Health, No. 97-CV-1347, 2000 WL 574193 (E.D.N.Y. Apr. 24, 2000), familiarity with which is assumed. In that decision, I granted the defendant's motion for summary judgment and also granted plaintiff leave to move to amend her complaint. That motion to amend that is now before me. Specifically, Lambert seeks to add five individual defendants and to add claims under the Family and Medical Leave Act and the Due Process Clause of the Fourteenth Amendment (both directly and through 42 U.S.C. § 1983).
DISCUSSION
A. The Family and Medical Leave Act Claim
Lambert's complaint, filed on April 4, 1997, included the following factual allegation: "On or about December 8, 1994[,] plaintiff became severely ill with psychosomatic symptoms brought on by the infliction of emotional distress that defendants caused her. While on sick leave, plaintiff was terminated from her employment." (Amended Complaint, par; 20.) That complaint went on to assert causes of action for discrimination, retaliation, a violation of state civil service law, and intentional infliction of emotional distress. (Id., Par; 23-2 8.)
Lambert's proposed second amended complaint provides additional detail about her leave status. Specifically, the proposed complaint alleges that plaintiff requested leave pursuant to the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., on December 16, 1994, because of her medical conditions. (Proposed Second Amended Complaint, par; 33.) Lambert provided medical documentation to support her claim for medical leave. (Id, par; 34.) While her medical leave request was pending, she used sick leave, personal time, and vacation time in order to stay out of work. (Id., par; 37.) The defendants, it is alleged, found Lambert to be eligible for FMLA benefits and notified her of that conclusion in February 1995. (Id., Par; 35-36.) Lambert was then terminated in March 1995. (Id., 38.) Based on these circumstances, the proposed complaint would assert a cause of action under the FMLA.
Since Lambert's FMLA claim against the Office of Mental Health is predicated on a request for leave involving her own health condition (as opposed, for example, to a request for leave for the birth of a child), it is barred by the Eleventh Amendment. See Hale v. Mann, __ F.3d __,__, No. 99-7326, 2000 WL 675209, at *6 (2d Cir. May 25, 2000) (holding that FMLA's purported abrogation of states' sovereign immunity to suits regarding employees' own health conditions exceeded Congress's power under the Fourteenth Amendment).
Although the proposed amended complaint and memoranda of law are somewhat ambiguous on this point, Lambert apparently also seeks to assert the FMLA claim against the proposed individual defendants. The Eleventh Circuit has held that individual state officers are not "employers" within the meaning of the FMLA. See Wascura v. Carver, 169 F.3d 683, 687 (11th Cir. 1999). The defendant, however, does not raise this argument, so I need not consider it. The amendment fails because the FMLA claim against these purported defendants is untimely, and it does not relate back to a timely filed complaint.
The FMLA includes two statute of limitations provisions. If the case involves a willful violation" of the law, an action must be commenced within three years "of the date of the last event constituting the alleged violation." 29 U.S.C. § 2617(c)(2). In all other cases, the action must be brought within two years "of the date of the last event constituting the alleged violation." 29 U.S.C. § 2617(c)(1).
Lambert's proposed second amended complaint alleges that the violation of her rights under the FMLA was done "maliciously and with a knowing disregard of plaintiff's federally protected rights." (Proposed Second Amended Complaint, par; 44.) The defendant argues that this statement is too conclusory an allegation of willfulness to entitle Lambert to the three-year statute of limitations. But see Settle v. S.W. Rodgers Co., 998 F. Supp. 657, 664 (E.D. Va. 1998) ("[W]here... a plaintiff sufficiently alleges facts supporting the claimed violation of the FMLA, a general averment as to willfulness should be sufficient to trigger the three-year limitation period."), aff'd, 182 F.3d 909 (4th Cir. 1999) (unpublished table decision). I will assume without deciding, however, that the three-year period applies. The defendant also argues that Lambert has failed to state a claim under the FMLA, but I will assume without deciding that she has.
That statute of limitations period began running when Lambert was terminated on March 16, 1995, and expired on March 16, 1998. Lambert did not seek to amend her complaint to add an FMLA claim until March 2000, two years after the limitations period expired. Her FMLA claim against the proposed new defendants may therefore proceed only if it relates back to Lambert's timely filed complaint. See Fed.R.Civ.P. 15(c)(3).
An amended complaint adding new defendants relates back if three conditions are met. First, the claims against the new defendants must rest on the same "conduct, transaction, or occurrence" as alleged in the original complaint. See Fed.R.Civ.P. 15(c)(2)-(3). Second, the proposed new party must have received "such notice" of the suit within (typically) 120 days of its ""institution" that he or she ""will not be prejudiced in maintaining a defense on the merits." See Rule 15(c)(3)(cross-referencing Rule 4(m)). Third, the amendment will not relate back unless the proposed new party "knew or should have known [within (typically) 120 days of the "institution of the action"] that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party." Id. (emphasis added).
Lambert's putative FMLA claim against the proposed new defendants fails because she has not even advanced an argument on the third requirement, namely, that these individuals should have known that but for a mistake regarding their identities, an FMLA claim would have been brought against them in the original complaint.
In addition, Lambert fails to meet the first requirement for relation back because the proposed FMLA claim does not involve the same transaction or occurrence as the previous complaint. The "central inquiry" when considering this requirement "is whether adequate notice of the matters raised in the amended pleading has been given to the opposing party within the statute of limitations "by the general fact situation alleged in the original pleading."' Stevelman v. Alias Research, Inc., 174 F.3d 79, 86-87 (2d Cir. 1999) (quoting Rosenberg v. Martin, 478 F.2d 520, 526 (2d Cir. 1973)). The Second Circuit has noted that "[w]here no new cause of action is alleged..., this Court liberally grants relation back under Rule 15(c)." Id. at 87. By necessary implication, when a party seeks to add a new cause of action, as in this case, the inquiry is more exacting. To be sure, the original complaint concerns the "occurrence" of Lambert's dismissal, as does the proposed FMLA cause of action. That bare linkage, standing alone, is not enough. See Rosenberg, 478 F.2d at 526 ("[T]he test is not contemporaneity but rather adequacy of notice."). The original complaint alleged that Lambert was dismissed as a result of racial discrimination and retaliation for her opposition to discrimination against another employee. That allegation did not give the defendant notice that Lambert would later allege that she was dismissed in retaliation for invoking her rights under the FMLA, or otherwise in violation of that statute. Not only are the legal theories that attend the claims wholly distinct, but the factual predicates behind them vary dramatically. See 106 Mile Transport Assocs. v. Koch, 656 F. Supp. 1474, 1487 (S.D.N.Y. 1987) ("If the facts in the original pleading do not provide defendant with notice of facts out of which the time-barred claim arises then relation back is inappropriate."). The original complaint's fleeting and isolated reference to Lambert's being terminated "[wihile on sick leave" does not change this analysis. "Sick leave" is not the same as medical leave under the FMLA, which the original complaint did not mention. Moreover, the original complaint did not draw any causal connection between Lambert's "sick leave" and her termination. At the least, some allegation of a causal connection would have been necessary to put the defendant on notice of the factual basis for this claim, since it is clear that "the FMLA does not prevent an employer from terminating an employee during a period of leave, so long as the taking of FMLA leave was not the cause for the termination." Santos v. Knitgoods Workers' Union, Local 155, No. 99 Civ. 1499, 1999 WL 397500, at *3 (S.D.N.Y. June 15, 1999).
For these reasons, the proposed amendment adding an FMLA cause of action would be futile.
B. Addition of a Cause of Action Under the Due Process Clause
Lambert seeks to add a cause of action alleging a violation of her right to due process under the Fourteenth Amendment. In addition to relying on 42 U.S.C. § 1983, the typical vehicle for constitutional damages actions against state actors, Lambert seeks to assert a direct cause of action under the Fourteenth Amendment itself. See Bivens v. Six Unknown Federal Agents, 403 U.S. 388 (1971) (recognizing implied right of action to remedy constitutional violations by federal officers). Given the availability of § 1983, it is extremely doubtful that Lambert would be able to proceed in this fashion. See Lombard v. Board of Educ. of New York, 784 F. Supp. 1029, 1035 (E.D.N.Y. 1992) ("[W]here there is a Section 1983 action available, a direct action such as this is obviated."); Cedar-Riverside Assocs., Inc. v. United States, 459 F. Supp. 1290, 1296 (D. Mm. 1978) ("Bivens did not create a new remedy for unconstitutional activity for state or local officers because redress was already available under § 1983."), aff'd sub nom., Cedar-Riverside Assocs., Inc. v. City of Minneapolis, 606 F.2d 254 (8th Cir. 1979).
Even if Lambert could proceed with a Bivens-style cause of action, her proposed amendment would be futile. First, the Eleventh Amendment would bar this claim as against the Office of Mental Health, see Santiago v. New York State Dep't of Correctional Servs., 945 F.2d 25, 32 (2d Cir. 1991). Second, the applicable statute of limitations would bar the action against the proposed individual defendants. For Bivens actions arising in New York, the statute of limitations is three years. See Tapia-Ortiz v. Doe, 171 F.3d 150, 151 (2d Cir. 1999) (per curiam). The three-year period begins running from the time the cause of action accrues, which is "when the plaintiff knows or has reason to know of the injury which is the basis of his action." Hayes v. Federal Bureau of Investigation, 562 F. Supp. 319, 323 n. 4 (S.D.N.Y. 1983).
Because of the Eleventh Amendment bar, Lambert's assertion that she actually raised her Due Process claim in her previous complaint is beside the point. Even if I had concluded that she had raised the claim previously, I would have dismissed it.
Lambert argues that this cause of action did not accrue until May 1999, when she received certain discovery documents that made her "aware of the conspiratorial plans that led to her summary termination." (Plaintiffs Reply Memorandum of Law in Support of Her Motion to Amend Her Pleadings at 3.) This specious assertion is plainly belied by the record. In July 1995, Lambert filed a petition in state court contending that she had been dismissed without the process due her under state civil service laws. That petition mentioned three of the proposed new defendants — Feig, Morris, and Scott — as having been involved in the allegedly illegal actions taken against Lambert. (Article § 78 Petition, Par; 29, 32, 57-58, 60.) In connection with the summary judgment motion in this case, Lambert submitted an affidavit in which she recounted a conversation with Cafarelli, the fourth proposed defendant, in which he advised her that the Office of Mental Health considered her a probationary employee — the classification that provides the basis for Lambert's due process claim. See Lambert, 2000 WL 574193, at *5 She was therefore aware of Cafarelli's involvement in the alleged violation even before her termination. Finally, Lambert was aware of the involvement of Dufresne, the fifth proposed defendant, in her termination because the two corresponded several times in late 1994 and early 1995 about his desire that she submit to an interview regarding her alleged wrongdoing at Kingsboro. See id. at *5 — *6
The cause of action therefore accrued upon Lambert's termination on March 16, 1995, and the statute of limitations expired three years later. Lambert did not seek to amend her complaint to add these individual defendants until March 2000, two years too late, and may therefore proceed only if the claim relates back to the prior complaint.
I previously stated the three requirements for relation-back involving new defendants. I need not decide whether Lambert's proposed amendment satisfies the first or second requirement (regarding a common transaction and notice) because she clearly fails on the third. Lambert explains her failure to name these defendants in her prior complaint as resulting from her lack of knowledge of their involvement in the illegal acts against her. It was only through the discovery process, she alleges, that she learned of their roles.
I have already rejected this contention as flatly contradicted by the record. Even were it true, however, it would fail to constitute a "mistake" within the meaning of Rule 15(c). "Rule 15(c) does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities." Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 470 (2d Cir. 1995), as modified, 74 F.3d 1366 (2d Cir. 1996) (per curiam);see also id. ("Since the new names were added not to correct a mistake but to correct a lack of knowledge, the requirements of Rule 15(c) for relation back are not met."); accord Tapia-Ortiz, 171 F.3d at 151-52.
Because the due process claim is barred by the Eleventh Amendment and the statute of limitations, an amendment adding it would be futile.
C. Addition of a § 1983 Conspiracy Claim Against Individual Defendants
Lambert also seeks to add a cause of action under 42 U.S.C. § 1983 alleging that the proposed individual defendants conspired to deprive her of her 14th Amendment due process rights. This proposed amendment would be futile for the same reasons as the purported Bivens action: the cause of action is brought beyond the applicable three-year statute of limitations, see Chin v. Bowen, 833 F.2d 21, 24 (2d Cir. 1987) (three-year limitations period for § 1983 actions), and, even crediting Lambert's explanation for not naming these individuals originally, there was no "mistake" as to their identity within the meaning of Rule 15(c)(3).
D. State Law Claim
Finally, Lambert seeks to add a state tort claim for intentional infliction of emotional distress against the proposed individual defendants. I need not decide whether this proposed amendment meets the requirements of Rule 15. Even assuming that it did, I would dismiss this state law claim, given my previous dismissal of all federal causes of action. See 28 U.S.C. § 1367(c)(3) ("The district court may decline to exercise supplemental jurisdiction over a claim, if... the district court has dismissed all claims over which it has original jurisdiction."). According, the proposed amendment is futile.
It is unclear from Lambert's proposed complaint whether she also seeks to assert a New York state civil service law claim against the proposed new defendants. To the extent she does, that portion of the amendment is denied for the same reasons as the portion seeking to assert a claim for intentional infliction of emotional distress against them. Assuming the amendment complied with Rule 15, I would decline to exercise jurisdiction over the cause of action. See 28 U.S.C. § 1367(c)(3). Accordingly, the proposed amendment would be futile.
CONCLUSION
For these reasons, the motion to amend the complaint is denied. The Clerk is directed to enter judgment against plaintiff and close this case.