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.
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.
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
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 ...