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NOWAK v. EGW HOME CARE
January 4, 2000
CHRISTINE ANN NOWAK, PLAINTIFF,
EGW HOME CARE, INC., DONALD WACH AND MARTIN JACKSON, DEFENDANTS.
The opinion of the court was delivered by: Arcara, District Judge.
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
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.
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
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
8. Discharge in violation of the FMLA.
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
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