Opinion
06 Civ. 770 (SAS).
July 11, 2006
Leticia Tamondong Springfield Gardens, NY, Plaintiff (Pro Se).
Michele C. Horan, Esq. Horan Horan, LLP White Plains, NY, Counsel for Defendant.
OPINION AND ORDER
I. INTRODUCTION
Leticia Tamondong brings this action against GMAC Commercial Credit LLC ("GMAC CC"), Corbyn Westerlow, and Charles Busuttil alleging that they: 1) discriminated against her due to her disability caused by work related injuries; 2) denied her reasonable accommodations; 3) created a hostile work environment; 4) wrongfully terminated her employment while she was out on leave; and 5) denied her long term disability ("LTD") and profit sharing benefits. GMAC CC now moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that the Complaint fails to state a claim upon which relief can be granted. For the following reasons the motion is granted.
Complaint ("Compl.") at 2-4.
See Defendant's Memorandum of Law in Support of Its Motion to Dismiss the Complaint or in the Alternative for Summary Judgment ("Def. Mem.") at 1.
II. BACKGROUND
The following facts, drawn from Tamondong's submissions, are presumed to be true for purposes of this motion. On March 9, 1995, Tamondong began working as a Senior Staff Accountant for the Bank of New York. In January 1999, Tamondong sustained injuries during the installation of electrical sockets in her work department causing multiple herniated discs, cord compression, and cervical radiculopathy.
Compl. ¶ 5.
See id.
Tamondong was out of work from January 27, 1999 to February 23, 1999, during which time she received workers compensation benefits. From February 24, 1999 until March 10, 1999, Tamondong worked two to three hours per day. When Tamondong returned to work on February 24, 1999, she requested a lower terminal for her keyboard to alleviate some of the discomfort caused by her injuries. The request was denied. At the same time, Mr. Westerlow created a hostile work environment by "angrily pull[ing] out a drawer on plaintiff's desk, and order[ing] her to place the keyboard on it." GMAC CC also failed to reasonably accommodate her disability by not allowing her to work flexible hours.
See id. ¶ 6.
See id.
See id.
See id.
Id. ¶ 24.
See id. ¶ 30.
Tamondong took a leave of absence from March 11, 1999 through August 27, 1999. On July 23, 1999, General Motors Acceptance Corporation ("GMAC") acquired BNY Financial Corporation and became GMAC CC. Tamondong returned to work on August 30, 1999 and worked until July 19, 2000.
See id.
See id. ¶ 5. The Complaint states that GMAC CC acquired Bank of New York but it actually acquired BNY Financial Corporation to become GMAC CC. See Def. Mem. at 2.
See Compl. ¶¶ 8, 11.
Tamondong states that she requested LTD benefits from defendants but that they informed her that her employment would be terminated unless she applied for short term disability benefits ("STD"). Tamondong alleges that she was unable to apply for STD because she was receiving workers compensation benefits and that she provided GMAC CC's human resources department with all of the appropriate documentation in support of her workers compensation claim. GMAC CC terminated Tamondong's employment on February 7, 2001. Tamondong contends that she was fired because of her failure to apply for STD. Furthermore, Tamondong claims that GMAC CC denied her profit sharing benefits to which she was entitled.
See id. ¶ 15. Although Tamondong alleges that she requested LTD, she fails to allege the date this request was made or how she made the request.
See id. ¶ 18.
See id. ¶ 35.
See id. ¶ 16.
See id. ¶¶ 31-32. On January 18, 2002, Tamondong filed a Verified Complaint with the New York City Commission on Human Rights ("Commission"), Complaint No: M-E-A-D-02-1011454, against GMAC CC, Corbin Westerlou, and Charles Busuttil. She asserts that her complaint was incorrectly dismissed by the Commission because defendants submitted misleading information. See Plaintiff's Affidavit in Opposition to Defendant's Motion to Dismiss at 4-5.
III. LEGAL STANDARD
A. Motion to Dismiss
"A court may not dismiss an action" pursuant to Rule 12(b)(6) "`unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" At the motion to dismiss stage, the issue "`is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims.'"
Leibowitz v. Cornell Univ., 445 F.3d 586, 590 (2d Cir. 2006) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Phelps v. Kapnolas, 308 F.3d 180, 184-85 (2d Cir. 2002) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)). Accord In re Initial Public Offering Sec. Litig., 241 F.Supp. 2d 281, 322-24 (S.D.N.Y. 2003).
The task of the court in ruling on a Rule 12(b)(6) motion is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." When deciding a motion to dismiss, courts must accept all factual allegations in the complaint as true, and draw all reasonable inferences in plaintiff's favor. Courts generally do not consider matters outside the pleadings but may consider documents attached to, referenced in, or integral to the pleadings. In addition, because plaintiff is appearing pro se, the factual allegations in Plaintiff's Affidavit in Opposition to Defendant's Motion to Dismiss and attached exhibits will be treated as part of her Complaint.
Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 176 (2d Cir. 2004) (quotation marks and citation omitted).
See Ontario Pub. Serv. Employees Union Pension Trust Fund v. Nortel Networks Corp., 369 F.3d 27, 30 (2d Cir. 2004) (citation omitted).
See Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d Cir. 2005) (citing International Audiotext Network, Inc. v. ATT Co., 62 F.3d 69, 72 (2d Cir. 1995)).
See Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering pro se plaintiff's affidavit in opposition to defendant's motion to dismiss in reviewing district court's dismissal of claim).
Although the plaintiff's allegations are taken as true, the claim may still fail as a matter of law if it appears beyond doubt that the plaintiff can prove no set of facts in support of its claim which would entitle it to relief, or if the claim is not legally feasible. Accordingly, a claim can only be dismissed if "`no relief could be granted under any set of facts that could be proved consistent with the allegations.'"
See Official Comm. of Unsecured Creditors of Color Tile, Inc. v. Coopers Lybrand, L.L.P., 322 F.3d 147, 158 (2d Cir. 2003); Stamelman v. Fleishman-Hillard, Inc., No. 02 Civ. 8318, 2003 WL 21782645, at *2 (S.D.N.Y. July 31, 2003).
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002) (quoting Hishon v. King Spaulding, 467 U.S. 69, 73 (1984)).
In addition, because "most pro se plaintiffs lack familiarity with the formalities of pleading requirements, [courts] must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency." Finally, courts must remain "mindful of the care exercised in this Circuit to avoid hastily dismissing complaints of civil rights violations."
Lerman v. Board of Elections in the City of N.Y., 232 F.3d 135, 140 (2d Cir. 2000) (citing Hughes v. Rose, 449 U.S. 5, 9-10 (1980) and Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001).
B. Claims Brought Under the Americans with Disability Act ("ADA")
"When a plaintiff fails to file a timely charge with the [United States Equal Employment Opportunity Commission] EEOC, the claim is time-barred." In New York, "the statute of limitations for filing a charge of discrimination with the EEOC is 300 days." "The statute of limitations begins to run when the employee receives notice of an allegedly discriminatory decision — not when the employee is actually impacted by it." "A district court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge that is `reasonably related' to that alleged in the EEOC charge." The purpose of this requirement is to give defendants notice in order to "encourage settlement of discrimination disputes through conciliation and voluntary compliance." This purpose would be defeated if a complainant had the ability to litigate a claim in court that was not previously presented to and investigated by the EEOC.
LeProvost v. New York, No. 03 Civ. 2544, 2004 WL 32860, at *7 (S.D.N.Y. Jan. 06, 2004) (citing Butts v. City of N.Y. Dep't. of Hous. Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superseded by statute on other grounds as stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684 (2d Cir. 1998)).
Butts, 990 F.2d at 1401.
Kendall v. Fisse, No. 00 Civ. 5154, 2004 WL 1196811, at *3 (E.D.N.Y. May 25, 2004), aff'd, 149 Fed. Appx. 19 (2d Cir. 2005) (citing Delaware State Coll. v. Ricks, 449 U.S. 250 (1980)).
Butts, 990 F.3d at 1401 (citations omitted).
Id.
See id.
C. Employment Retirement Income Security Act ("ERISA") Claims
As required by ERISA, an employee benefit plan must provide its participants with a reasonable opportunity to obtain a "full and fair review" after denial of a claim. The doctrine of exhaustion of administrative remedies rests on the principle "`that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.'" In the ERISA context,
Kennedy v. Empire Blue Cross and Blue Shield, 989 F.2d 588, 592 (2d Cir. 1993) (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51(1938)).
`The primary purposes of the exhaustion requirement are to: (1) uphold Congress' desire that ERISA trustees be responsible for their actions, not the federal courts; (2) provide a sufficiently clear record of administrative action if litigation should ensue; and (3) assure that any judicial review of fiduciary action (or inaction) is made under the arbitrary and capricious standard, not de novo.'
Id. at 594 (quoting Denton v. First Nat'l Bank of Waco, Texas, 765 F.2d 1295, 1300, reh'g denied, 772 F.2d 904 (5th Cir. 1985)).
"It is well settled that timely exhaustion of plan remedies is a prerequisite to suit in federal court and that, absent appropriate equitable considerations, court action is barred absent such exhaustion." A claimant is "required to exhaust even if she [i]s ignorant of the proper claims procedure." If a plaintiff fails to allege that he or she has exhausted administrative remedies, the claim must be dismissed. Failure to exhaust remedies may be excused on the grounds of futility "only `where claimants make a clear and positive showing that pursuing available administrative remedies would be futile.'"
Sanfilippo, 178 F.Supp. 2d at 458. Accord Denton, 765 F.2d at 1300.
Davenport v. Harry N. Abrams, Inc., 249 F.3d 130, 134 (2d Cir. 2001).
See Benaim v. HSBC Bank USA, 94 F.Supp. 2d 518, 519 (S.D.N.Y. 2000).
Davenport, 349 F.3d at 133 (quoting Kennedy, 989 F.2d at 594).
IV. DISCUSSION
A. Tamondong Failed to File a Complaint with the EEOC
Tamondong failed to file a timely complaint with the EEOC and obtain a right to sue letter. As a result, this Court lacks jurisdiction over Tamondong's ADA claims alleging that GMAC CC: 1) discriminated against her due to her disabilities; and 2) failed to provide a reasonable accommodation for her disabilities. GMAC CC's motion to dismiss those claims is granted.
B. Tamondong Failed to Exhaust Administrative Remedies
The Fidelity Corporate Plan for Retirement — the plan that covers GMAC CC's 401(k) and Profit Sharing Plan — proscribes the remedies available to a person asserting a claim under the plan. Once a claim is considered denied — either because the employee receives written notice of the denial or ninety days have passed since the employee made a request for benefits — the employee has sixty days to request that the administrator review the denial. Tamondong failed to exhaust these remedies; therefore Tamondong's claims are barred and must be dismissed.
See GMAC CC's 401(k) and Profit Sharing Plan governed by Fidelity Corporate Plan for Retirement at 82.
See id.
Tamondong also failed to exhaust the administrative remedies proscribed under the First Unum Life Insurance Company Plan for her LTD claim. When Tamondong's LTD claim was denied, she had sixty days to appeal and request a review. Tamondong does not allege that she appealed a denial of her LTD claim. Thus, Tamondong's claim for LTD benefits must be dismissed.
See GMAC CC's Group Insurance Policy governed by First Unum Life Insurance Company at 42.
See id.
C. The Court Lacks Jurisdiction Over Tamondong's Non-Federal Claims
As Tamondong's federal claims fail as a matter of law, the remaining question is whether there is any basis for jurisdiction over her state law claims — wrongful termination, and discrimination. Tamondong has not alleged diversity jurisdiction. When all federal claims have been dismissed, courts generally decline to exercise supplemental jurisdiction over remaining state law claims. There is no reason to depart from that general rule here.
See 28 U.S.C. § 1367(c)(3) (district court may decline to exercise supplemental jurisdiction over a claim if, inter alia, "the district court has dismissed all claims over which it has original jurisdiction"). See also Martinez v. Simonetti, 202 F.3d 625, 636 (2d Cir. 2000) (directing dismissal of state law claims when no federal claims remained).
See Adams v. Intralinks, Inc., No. 03 Civ. 5384, 2004 WL 1627313, at *8 (S.D.N.Y. July 20, 2004) ("In the usual case in which all federal law claims are eliminated before trial, the balance of factors to be considered under the [supplemental] jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state law claims.") (quotation and citation omitted).
V. CONCLUSION
For the foregoing reasons, GMAC CC's motion is granted. The Clerk of the Court is directed to close this motion (docket # 12). I am considering dismissing the claims against the individual defendants Westerlow and Busuttil for the reasons set forth above. Because Tamondong is appearing pro se, she may make a submission, no later than August 14, 2006, as to why her case against the individual defendants should not be dismissed.
SO ORDERED.