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GINSBERG v. VALHALLA ANESTHESIA ASSOCS.

July 23, 1997

ELLEN GINSBERG, D.O., Plaintiff, against VALHALLA ANESTHESIA ASSOCIATES, P.C., Defendant.


The opinion of the court was delivered by: BAER

 HAROLD BAER, JR., District Judge:

 Plaintiff moves for summary judgment: (i) dismissing the counterclaims brought by defendant, (ii) on her retaliation claim insofar as it is based on the counterclaims and (iii) on her claim for damages for defendant's failure to provide her with benefit information in a timely manner. For the reasons discussed below, plaintiff's motion is GRANTED in part and DENIED in part.

 BACKGROUND

 Plaintiff was employed as an attending anesthesiologist at defendant Valhalla Anesthesia Associates ("Valhalla"). In early 1995 plaintiff informed Dr. Elizabeth Frost that she was pregnant and that her child was due in mid-June. Plaintiff indicated her desire to take maternity leave from early June until November 1, 1995. There is some dispute as to whether any agreement was reached at this time with respect to the length and timing of plaintiff's maternity leave. In any event, plaintiff soon fell ill, suffering from deep vein thrombosis, a pregnancy-related illness, and missed several days of work. There is no dispute that she subsequently requested not to work nights or overnight and that defendant acquiesced in this request. On May 9, 1995 plaintiff requested that her maternity leave begin on May 12, 1995 and it began on that date. Plaintiff's child was born on June 14, 1995.

 Plaintiff brought this action alleging that she was discriminated against on the basis of her sex and pregnancy when she was terminated from her employment and that defendant failed to provide timely benefit information regarding her pension and 401(k) plans when requested, as required by ERISA. Defendant asserts that plaintiff was never fired but rather chose not to return to work. Defendant counterclaims for (a) the cost of benefits and vacation and sick days paid for while plaintiff was on maternity leave, on the ground that plaintiff was not entitled to such benefits because she did not return to work and (b) damages for breach of contract based on plaintiff's light duties undertaken after her bout with thrombosis. Plaintiff asserts that the counterclaims filed by defendants constitute impermissible retaliation for her having filed this lawsuit.

 DISCUSSION

 I. Counterclaims

 A. Jurisdiction

 Plaintiff moves to dismiss the counterclaims, inter alia, on the ground that they constitute permissive, rather than compulsory, counterclaims, and that there is no independent basis of federal jurisdiction. See Harris v. Steinem, 571 F.2d 119, 121-22 (2d Cir. 1978). A compulsory counterclaim is one that "arises out of the transaction or occurrence that is the subject matter" of plaintiff's claim, Fed. R. Civ. P. 13(a), and requires no independent basis of federal jurisdiction. Harris, 571 F.2d at 121-22. Permissive counterclaims, by contrast, do require an independent basis of federal jurisdiction. Id. at 122. "In determining whether a counterclaim is compulsory, this Court must determine . . . whether the essential facts of the various claims are so logically connected that considerations of judicial economy and fairness dictate that all issues be resolved in one lawsuit." Spencer v. Banco Real, S.A., 623 F. Supp. 1008, 1011 (S.D.N.Y. 1985).

 Defendant's first counterclaim seeks the cost of benefits paid to plaintiff while she was on maternity leave and the second seeks $ 50,000 in damages for plaintiff's failure to perform adequately under the contract prior to her leave. The question is thus whether there is a sufficient "logical relationship" between these counterclaims and plaintiff's claims for discrimination. While there is obviously some relationship between plaintiff's discrimination claims and defendant's counterclaims, as both arise out of plaintiff's employment, that relationship alone is insufficient to render the counterclaims compulsory. See Spencer, 623 F. Supp. at 1011-12 (tort counterclaims relating to plaintiff's actions during her employment not sufficiently related to plaintiff's Title VII claims); Kolta v. Tuck Indus., Inc., 1975 U.S. Dist. LEXIS 16723, No. 74 Civ. 4195-LFM, 1975 WL 271 (S.D.N.Y. 1975) (counterclaim alleging poor performance not compulsory in discrimination case); Worlds v. National Railroad Passenger Corp., 1988 U.S. Dist. LEXIS 14520, No. 84 C 10027, 1988 WL 139252 (N.D. Ill. Dec. 22, 1988) (counterclaim alleging fraudulent conduct by employee not sufficiently related to discrimination claim); Koprowski v. Wistar Institute of Anatomy and Biology, 1992 U.S. Dist. LEXIS 9706, *2, Civ. A. No. 92-1132, 1992 WL 151302 (E.D. Pa. 1992) (not all claims arising from employment relationship sufficient to meet "transaction or occurrence" test) (citing cases). Some greater connection must be shown.

 Defendant's first counterclaim is predicated on the assumption that plaintiff was not fired, but rather chose not to return to work. Accordingly, defendant argues, plaintiff was not entitled to the benefits she received while on leave. Defendant's contentions in this regard are identical to its defense to plaintiff's discrimination claims--plaintiff was not terminated, which is an element of plaintiff's prima facie case. The "essential facts" of the first counterclaim and the allegations in the complaint are thus identical and the very same factual determination will be essential to both. Likewise, the proof regarding whether plaintiff was fired or quit will be identical with respect to both the claims in the complaint and the first counterclaim. Although additional proof will be required to establish defendant's entitlement to the cost of the benefits in the event plaintiff is determined to have quit, that does not negate the "logical relationship" between the claims. Accordingly, I conclude that the first counterclaim is compulsory and not permissive.

 The same cannot be said for the second counterclaim. Defendant's allegations with regard to plaintiff's failure to adequately perform after her illness do not relate to the same facts that are essential to plaintiff's claims. Rather, the sole connection is that the counterclaim relates to plaintiff's employment. As discussed above, such a loose relationship, absent more, does not suffice to establish that the counterclaim arises out of the same "transaction or occurrence" as plaintiff's claims. Kolta, 1975 U.S. Dist. LEXIS 16723, 1975 WL 271 (counterclaim alleging poor performance not compulsory in discrimination case). I therefore conclude that the second ...


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