United States District Court, Western District of New York
January 10, 2002
LAUREL MULLIN, PLAINTIFF VS. ROCHESTER MANPOWER, INC.; MANPOWER, INC.; AND MARYANN DEE, DEFENDANTS
The opinion of the court was delivered by: Charles J. Siragusa, United States District Judge.
DICISION AND ORDER
Plaintiff filed a complaint on June 7, 2000, seeking injunctive
relief, a declaratory judgment, and money damages under the Family and
Medical Leave Act, the Pregnancy Discrimination Act, Title VII of the
Civil Rights Act of 1964, as amended, and the Human Rights Law of the
State of New York. Defendants responded on June 27, 2000, with a notice
of motion seeking a dismissal under Rule 12(b)(6) of the Federal Rules of
Civil Procedure. Plaintiff responded on August 21, 2000, by filing a
notice of cross-motion seeking an amendment of her complaint and an order
denying defendants' motion seeking dismissal of plaintiff's third,
fourth, and fifth causes of action. For the reasons stated below, the
Court denies defendants' motion to dismiss and grants plaintiff's motion
Amendment of Plaintiff's Complaint
The Federal Rules of Civil Procedure state that leave to amend "shall
be freely given when justice so requires." FED. R. CIV. P. 15(a). The
gist of plaintiff's argument on the amendment of her complaint is that
although original complaint sufficiently meets the pleading requirements
under the various Acts, amendment should be permitted at this early stage
of the action "so that there will be no doubt as to the facts underlying
her claim against Defendants based upon a denial of her right to take
leave pursuant to the Family and Medical Leave Act." Pappas aff. at
Plaintiff further provides proof of the sequence of events following
the filing of the her complaint on June 7, 2000. On June 12, 2000, the
complaint was served on defendants, Rochester Manpower, Inc. and Maryann
Dee. On June 14, 2000, the complaint was served on defendant Manpower,
Inc. On June 27, 2000, defendants filed their answer and their motion to
dismiss. On July 12, 2000, plaintiff's attorney sent a letter and
proposed amended complaint to defendants' counsel requesting that the
defendants consent to allow plaintiff to amend her complaint. Pappas
aff. at ¶¶ 4-9. Defendants' counsel responded in a letter dated July
14, 2000, in which
counsel stated, "I am not inclined to voluntarily
accept service [of the amended complaint] since we believe that our
motion for partial dismissal is warranted even in light of the proposed
amendment." Matthew J. Fusco letter to Lawrence E. Pappas (July 14, 2000)
attached as Exhibit F to plaintiff's exhibits. In the same letter,
defendants' counsel also expressed confusion, "by the new allegations in
light of our conversation wherein you represented your client never asked
for leave in connection with the second pregnancy." Id. Defendants'
counsel's letter does not indicate an objection to the amendment based
upon delay, undue prejudice, or expense.
The Court may deny leave to amend in the face of, "undue delay, bad
faith, or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to
the opposing party by virtue of allowance of the amendment, [or] futility
of the amendment . . . ." Fomin v. Davis, 371 U.S. 178, 182 (1962); see
also, United States v. Continental Illinois National Bank and Trust
Company, 889 F.2d 1248, 154 (2d Cir. 1989). After reviewing counsels'
arguments for and against amendment, the Court finds that the interests
of justice require that the motion to amend be granted.
Motion to Dismiss and Sufficiency of Amended Complaint
Because the Court has granted plaintiff's motion to amend, the Court
denies defendants' motion to dismiss counts of the original complaint as
moot. Nevertheless, in anticipation of a motion to dismiss and the
amended complaint, and because defendants' counsel opined that even the
amended complaint would not withstand their motion to dismiss, the Court
will discuss the sufficiency of the amended complaint in light of Federal
Rules of Civil Procedure 12(b)(6).
In reviewing a motion to dismiss, the Court must presume that the
allegations in the complaint are true and resolve all doubts and
inferences in favor of the non-moving party. Wright v. Ernst & Young
LLP, 152 F.3d 169,173 (2d Cir. 1998). The complaint cannot be dismissed,
"unless it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46 (1957); see also Easton v. Sundram,
947 F.2d 1011, 1015 (2d Cir. 1991). "This caution against dismissal
applies with even greater force where the complaint is pro se, . . . or
where the plaintiff complains of a civil rights violation . . . ."
Easton, 947 F.2d at 1015 (internal citations omitted).
Title 29 U.S. Code § 2612(a)(1) entitles an eligible employee to a
total of twelve workweeks of leave during any twelve month period for the
birth of a son or daughter, or in order to care for a son or a daughter.
The term "eligible employee" is defined in § 2611(2)(A) as an
employee who has been employed for at least twelve months by the employer
with respect to whom leave is requested under § 2612 and for at least
one thousand two hundred fifty hours of service with such employer during
the previous twelve month period. In her amended complaint, plaintiff
adds sufficient factual allegations to prove that she was an eligible
employee. See Amended Complaint at ¶¶ 12-13. In addition, the statute
also defines the term "employer" under § 2611(4) as any person
engaged in commerce or in any industry or activity affecting commerce who
employs fifty or more employees for each working day during each of
twenty or more calendar workweeks in the current or preceding calendar
year. Again, in her proposed amended
complaint, plaintiff alleges facts
sufficient to show that Rochester Manpower, Inc. qualifies as an employer
under 29 U.S. Code § 2611.
Plaintiff also asserts a claim under Title VII of the Civil Rights Act
of 1964, codified in 42 U.S. Code § 2000e et seq., and the Pregnancy
Discrimination Act. Title 42 U.S. Code § 2000e-II(a), states in
It shall be an unlawful employment practice for an
to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
condition, or privileges of employment because of
such individual's race, color, religion, sex, or
national origin . . . .
The definitional section of that statute, 42 U.S. Code § 2000e(k),
states that the terms "because of sex" or "on the basis of sex" include,
but are not limited to, because of or on the basis
of pregnancy, child birth, or related medical
conditions; and woman affected by pregnancy, child
birth, or related medical conditions shall be
treated the same for all employment-related
purposes, including receipt of benefits under fringe
benefit programs, as other persons not so affected
but similar in their ability or inability to work,
an nothing in § 2000e-II(h) of this Title shall
be interpreted to permit otherwise . . . .
Finally, plaintiff makes a claim under the New York State Human Rights
Law, codified at New York Executive Law § 296. That statute makes it
an unlawful discriminatory practice
for an employer or licensing agency, because of the
age, race, creed, color, national origin, sex,
disability, genetic predisposition or carrier
status, or marital status of any individual, to
refuse to hire or employ or to bar or to discharge
from employment such individual or to discriminate
against such individual in compensation or in
terms, conditions or privileges of employment.
N.Y. EXEC. LAW § 296(1)(A). That statute also makes it an unlawful
employment practice, "for an employer to compel an employee who us
pregnant to take a leave of absence, unless the employee is prevented by
such pregnancy from performing the activities involved in the job or
occupation in a reasonable manner." N.Y. EXEC. LAW § 296(1)(g). The
Court notes that the elements of Title VII and New York Discrimination
Law claims are virtually identical. See, Clark v. New York State Electric
and Gas Corp., 67 F. Supp.2d 63 (N.D.N Y 1999).
Defendants' motion against the original complaint was predicated on the
argument that plaintiff had set forth no facts which would entitle her to
relief under the Family and Medical Leave Act, which is encompassed by
the third, fourth, and fifth causes of action in the original and amended
complaints. Defendants argue in their memorandum of law, at 2, that
plaintiff was not terminated for the leave she took in 1997. If defendants
made a similar claim with regard to the amended complaint, the Court
would agree that even plaintiff's amended complaint does not allege a
violation based on her 1997 pregnancy and leave.
Defendants also contended that plaintiff did not allege in her
complaint that she took or requested Family Medical Leave Act leave
between 1997 and 2000. Defendants argue, therefore, that plaintiff has
made no claim that she was terminated in retaliation for the exercise of
In sum, there is simply no claim that plaintiff
engaged in any activity giving rise to protection of
the FMLA . . . plaintiff
does not allege that she
was denied FMLA leave, nor does she allege that she
was terminated after notifying defendants of a
future scheduled leave. Thus, the complaint is
legally insufficient to establish a prima facie
Defendants' Memorandum of Law at 2.
Plaintiff responded to defendants' arguments by stating in paragraph 34
of her amended complaint that, "plaintiff gave Rochester Manpower, Inc.
approximately seven (7) months of notice of her intention to take
maternity leave." Thus, although plaintiff did not use the letters FMLA
or the words "Family Medical Leave Act," paragraph 34 of the amended
complaint does succinctly state that she gave notice of her intent to
take maternity leave. Maternity leave is one of the bases for leave under
the Family Medical Leave Act. See 29 U.S. Code § 2612(a)(1)(A). The
statute requires the employee to give not less than thirty days notice
before the date the leave is to begin of the employee's intention to take
leave under such sub-paragraph. 29 U.S. Code § 2612(e)(1). In the
regulations governing the Family Medical Leave Act, an employee
need not expressly assert rights under the FMLA or
even mention the FMLA, but may only state that leave
is needed for an expected birth, or adoption, for
example. The employer should inquire further of the
employee if it is necessary to have more information
about whether FMLA leave is being sought by the
employee and obtain the necessary details of the
leave to be taken.
29 C.F.R. § 825.302(c).
For the purposes of a motion to dismiss under the Rule 12(b)(6), the
Court would find that the amended complaint adequately states facts
supporting the causes of action which defendants sought to dismiss by
their motion to dismiss counts of the original complaint. Cf. Vicioso v.
Pizza Brothers, Inc., 1998 WL 355415 (S.D.N.Y. 1998) (the court found
plaintiff failed to prove notice when complaint did not allege she
provided defendant with notice prior to or during absence). Thus, were
defendants to move to dismiss the amended complaint on the grounds
discussed above, the Court would deny the motion.
Plaintiff's motion to amend the complaint (# 10) is granted and
defendants' motion to dismiss the third, fourth and fifth causes of
action in the original complaint (# 4) is denied as moot.
IT IS SO ORDERED.
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