Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

NOWAK v. EGW HOME CARE

January 4, 2000

CHRISTINE ANN NOWAK, PLAINTIFF,
V.
EGW HOME CARE, INC., DONALD WACH AND MARTIN JACKSON, DEFENDANTS.



The opinion of the court was delivered by: Arcara, District Judge.

    ORDER

The above-referenced case was referred to Magistrate Judge Carol E. Heckman pursuant to 28 U.S.C. § 636(b)(1)(B), on July 7, 1999. On December 8, 1999, Magistrate Judge Heckman filed a Report and Recommendation, recommending that defendants' motions to dismiss the complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure should be granted to the extent that the motions seek dismissal of plaintiffs sixth, seventh, eighth and ninth causes of action, and denied in all other respects.

The Court has carefully reviewed the Report and Recommendation, the record in this case, and the pleadings and materials submitted by the parties. No objections having been timely filed, it is hereby

ORDERED, that pursuant to 28 U.S.C. § 636(b)(1), and for the reasons set forth in Magistrate Judge Heckman's Report and Recommendation, defendants' motion to dismiss the complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure are granted to the extent that they seek dismissal of plaintiffs sixth, seventh, eighth and ninth causes of action, and denied in all other respects.

The case is referred back to Magistrate Judge Heckman for further proceedings.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

This matter was referred to the undersigned by Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and report on dispositive motions. Defendants have filed two motions (Items 6 and 16) to dismiss the complaint pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. For the following reasons, the motions should be granted in part and denied in part.

BACKGROUND

On May 18, 1999, plaintiff Christine Ann Nowak filed the complaint in this case seeking damages for employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Family and Medical Leave Act of 1993, 29 U.S.C. § 2601 et seq. ("FMLA"), the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), and various state law provisions. According to the allegations in the complaint, plaintiff was employed by defendant EGW Home Care, Inc., as Director of Nursing/Nursing Supervisor beginning in December 1994, and was promoted to Director of Patient Services in June 1996. In September 1996, defendant Donald Wach (the owner of EGW) hired defendant Martin Jackson as Assistant Administrator. Plaintiff alleges that, starting in or about September 1997, Mr. Jackson subjected her to "uninvited and unwelcome, lewd and suggestive comments because of her sex" (Item 1, ¶ 13). She claims that this "continuous harassment . . . unreasonably interfered with her ability to perform her job and created an intimidating, hostile and offensive working environment" (id., ¶ 21), and that she complained to Mr. Wach about Mr. Jackson's conduct, to no avail.

Plaintiff also claims that in late January 1988 she experienced a nosebleed while Mr. Jackson was yelling at her, and that soon thereafter she "was placed on disability leave by her doctor because of the stress unreasonably [caused] by" defendants (id., ¶ 27). She returned to work on March 3, 1998, at which time she was informed by both Mr. Wach and Mr. Jackson that the position of Director of Patient Services had been eliminated, and that she would be ineligible for any salary increase in her new position as Director of Nursing. She worked for about two weeks, and "was again placed on disability leave by her physician" (id., ¶ 36). Shortly thereafter she met again with Mr. Wach on two occasions. At the second meeting Mr. Wach asked for her resignation. She informed him that she was on disability leave, and she refused to resign (id., ¶¶ 37-42).

On March 27, 1998, plaintiff received a letter from Mr. Wach informing her that she had been terminated from her employment at EGW effective March 20, 1998. Plaintiff alleges in the complaint that on May 12, 1998, she filed a charge with the Equal Employment Opportunity Commission ("EEOC") in which she claimed that she was discriminated against because of her sex and her disability (see Item 6, Ex. A). On February 26, 1999, plaintiff received a "Notice of Right to Sue" letter from the EEOC informing her that its processing of her charge had been terminated because it was unlikely that the processing would be completed within 180 days from filing (id., Ex. B).

In her complaint in this action, plaintiff sets forth the following claims for relief:

1. Discriminatory demotion and discharge because of her sex, in violation of Title VII.
2. Hostile work environment, in violation of Title VII.
3. Failure of EGW and Donald Wach to adequately supervise Martin Jackson, in violation of New York Executive Law § 296.
4. Retaliatory discipline, demotion and discharge, in violation of Title VII.
5. Retaliatory discipline, demotion and discharge, in violation of New York Executive Law.
6. Discriminatory demotion and discharge because of her disability, in violation of the ADA.
7. Discriminatory demotion and discharge because of her disability, in violation of the New York Executive Law.

8. Discharge in violation of the FMLA.

9. Defamation.

10. Discharge in violation of New York Workers' Compensation Law § 120.

On June 30, 1999, defendants filed a motion pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the first, second, third, fourth and fifth causes of action against the individual defendants, and the sixth, seventh, eighth, ninth and tenth causes of action in their entirety, for failure to state claims upon which relief can be granted. Defendants also moved to dismiss the complaint to the extent it seeks punitive damages under the New York Human Rights Law. In response to defendants' motion, plaintiff agreed to withdraw her Title VII and ADA claims against individual defendants Wach and Jackson, as well as her claims under the New York Workers' Compensation Law and her claims for punitive damages under New York law (see Item 12, ¶¶ 7-9). On October 25, 1999, defendants filed a supplemental motion to dismiss the first, second and third causes of action in their entirety on the grounds that the court lacks subject matter jurisdiction over defendants' conduct alleged to have occurred prior to January 16, 1998 — i.e., within 300 days of November 12, 1998, which is the actual date on which plaintiff filed her complaint with the EEOC (not May 12, 1998, as alleged in the complaint), and that the conduct alleged to have occurred on or after January 16, 1998 does not support these causes of action as a matter of law.

Consequently, the court will construe the grounds for defendants' motion to dismiss be as follows:

I. Plaintiff's Title VII claims based on conduct alleged to have occurred prior to January 16, 1998 are time-barred.
II. Failure to state claims for sex discrimination or hostile environment upon which relief can be granted under Title VII based on conduct alleged to ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.