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February 7, 2001


The opinion of the court was delivered by: Shira A. Scheindlin, United States District Judge


Plaintiff Li-Lan Tsai, proceeding pro se, brings suit against her former employer under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12112 et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., alleging retaliation, failure to accommodate, unequal terms and conditions of employment, and unlawful termination. Defendant, the Rockefeller University ("RU"), moves to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(c). For the following reasons, defendant's motion is denied.

I. FACTS*fn1

Plaintiff began working for RU in September, 1978. See Letter dated June 10, 1993 ("6/10/93 Ltr.") at 1. In June of 1993, the Director of the Laboratory Safety Department informed plaintiff that funding for her position would be discontinued as of July 1, 1993. See Letter from Dr. Edward L. Gershey dated June 8, 1993. Plaintiff was assured by RU's then Assistant Director of Personnel, Ms. Mary Ann George, that even though her position had been eliminated, she would not be terminated and would remain on RU's payroll. See 6/10/93 Ltr. at 2. On June 24, 19993, plaintiff was interviewed by Dr. Steven J. Shiff who offered plaintiff a position in his laboratory beginning August 16, 1993. See Letter dated August 16, 1993 ("8/16/93 Ltr.") at 1.

Shortly after she began working for Dr. Shiff, plaintiff missed approximately one work day per month. Her absence resulted from severe cough, sore throat and fever, caused by Hepatitis B. See Letter dated March 23, 1994 ("3/23/94 Ltr.") at 1-2; see also Letter from Dr. Steven J. Shiff dated March 23, 1994 at 1 ("Your absenteeism has become a regular occurrence, as you have called in sick at least one day per month since starting in mid-August. This is in addition to the frequent number of times you have requested and I have granted permission for you to leave early."). In August of 1996, plaintiff was denied a salary increase. See Letter from Dr. Steven J. Shiff dated August 8, 1996 ("I did not recommend you for an increase because of your poor overall attendance record and failure to adhere to University policy regarding reporting absences from work due to personal illness . . . [I]n order to continue your position as Research Assistant in my laboratory, you are expected to maintain good and regular attendance.").

In early November 1996, plaintiff was diagnosed with cirrhosis of the liver which may have been caused by occupational exposure to a liver carcinogen, Xylene, which plaintiff used on a daily basis. See Letter dated January 17, 2000 ("1/17/00 Ltr.") at 1-2. On November 20, 1996, while plaintiff was having a blood test, Dr. Shiff called her into his office and terminated her employment. See id. at 3; see also Letter from Dr. Shiff dated November 20, 1996 ("Shiff 11/20/96 Ltr."). In his letter, Dr. Shiff stated that "the unreliability of [plaintiff's] attendance due to belated requests for vacation days and unscheduled absences (many of which have surrounded scheduled time off) have not only affected [plaintiff's] performance but also had an adverse impact on the overall operation of the laboratory and hindered the progress of my work." Shiff 11/20/96 Ltr. at 1.

Approximately three years later, on October 14, 1999, plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") charging unlawful termination and retaliation. See Charge of Discrimination dated October 14, 1999. In addition to the allegation of unlawful termination, plaintiff also claims that defendant failed to accommodate her disability by ignoring a doctor's request that plaintiff be assigned light work. See id; see also Discriminatory Incidences Letter ("DI Ltr."), undated, at 2. Specifically, plaintiff claims that defendant forced her to transport carts "loaded with chemicals and solvent bottles" to and from a building located two blocks from her place of employment. DI Ltr. at 2-3. Plaintiff also complains that she was denied the opportunity for knee surgery because it would have caused a further loss of work time, while a colleague, Jim Gugluzza, told plaintiff that he took three months leave at full pay to have similar surgery. See Letter dated August 8, 1996 ("8/8/96 Ltr.") at 1. The EEOC issued plaintiff a right-to-sue letter dated October 21, 1999. Plaintiff's Complaint is dated January 18, 2000.

II. Discussion

A. Motion to Dismiss Standard

The standard applicable to a motion to dismiss under Rule 12(c) is the same as that under Rule 12(b)(6). See Irish Lesbian and Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998). Dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) is proper only where "`it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim that would entitle [her] to relief.'" ICOM Holding, Inc. v. MCI Worldcom, Inc., No. 00-7660, 2001 WL 46675, at *1 (2d Cir. Jan. 22, 2001) (quoting Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999)). "At the Rule 12(b)(6) stage, `[t]he issue is not whether a plaintiff is likely to prevail ultimately, but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.'" Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000) (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998) (internal quotation marks)). 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.'" Sims, 230 F.3d at 20 (quoting Ryder Energy Distribution Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984) (internal quotation marks omitted)).

To properly rule on a 12(b)(6) motion, the court must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the nonmoving party's favor.*fn2 See ICOM Holding , 2001 WL 46675, at *1. Nevertheless, "[t]o survive a motion to dismiss, [plaintiff's] claims must be `supported by specific and detailed factual allegations' not stated `in wholly conclusory terms.'" Friedl v. City of New York, 210 F.3d 79, 85-86 (2d Cir. 2000) (quoting Flaherty v. Coughlin, 713 F.2d 10, 13 (2d Cir. 1983)). 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." Lerman v. Board of Elections in the City of New York, 232 F.3d 135, 140 (2d Cir. 2000) (citing Hughes v. Rowe, 449 U.S. 5, 9-10 (1980) and Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). Thus, dismissal is "`appropriate only if it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.'" Friedl, 210 F.3d at 83 (quoting Harris, 186 F.3d at 250 (internal quotation marks omitted)). "`This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se.'" Cruz v. Gomez, 202 F.3d 593, 596 (2d Cir. 2000) (quoting Chance, 143 F.3d at 701).

Because plaintiff is proceeding pro se, the factual allegations raised in Plaintiff's Opposition to Defendant's Motion to Dismiss ("Pl. Opp.") will be treated as part of her Complaint. See Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering pro se plaintiff's affidavit in reviewing district court's dismissal of claim); Donahue v. United States Dep't of Justice, 751 F. Supp. 45, 49 (S.D.N.Y. 1990) ("The policy reasons favoring liberal construction of pro se pleadings warrant the Court's consideration of the allegations contained in plaintiffs' memorandum of law, at least where those allegations are consistent with the allegations in the complaint.").

B. Statute of Limitations

"In states such as New York that have an agency with the authority to address charges of discriminatory employment practices, the statute of limitations for filing a charge of discrimination with the EEOC is 300 days."*fn3 Butts v. City of New York Dep't of Hous., Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993). And a plaintiff who fails to file a timely charge with the EEOC is generally barred from bringing a claim of discrimination in federal court. Id. It is well established, however, that "filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a ...

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