The opinion of the court was delivered by: Frederic Block, District Judge
Pro se plaintiff Christine Fuller ("plaintiff") brings this action pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., claiming that defendant J.P. Morgan Chase & Co. Benefits Appeal Committee ("defendant") implemented its long-term disability plan ("LTD plan") in a discriminatory manner. In her affirmation in opposition to defendant's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), plaintiff presents a new claim not set forth in her complaint. Defendant submits reply papers to dismiss the claim pursuant to Rule 12(b)(6). For the reasons stated below, the Court grants defendant's motion as to the ADA claim, sua sponte deems the claim presented in plaintiff's affidavit as an amendment to her complaint, converts defendant's Rule 12(b)(6) motion in respect thereto to one for summary judgment, and grants plaintiff 30 days to respond to that motion.
Plaintiffs ADA claim centers on defendant's LTD plan, which provides mentally-disabled employees with benefits for eighteen months, but provides physically-disabled employees with benefits until age 65. Compl. ¶ 8. Plaintiff, who alleges that she suffers from manic depression (bi-polar disorder), a "medically caused mental illness," and that she received eighteen months of benefits under the LTD plan, claims that the plan violates ADA by "discriminat[ing] against employees with mental illnesses." Compl. ¶ 8.
Even construing the facts in the light most favorable to the plaintiff, see Hamilton Chapter of Alpha Delta Phi, Inc. v. Hamilton College, 128 F.3d 59, 63 (2d Cir. 1997), and reading her complaint "to raise the strongest arguments" it suggests, Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), plaintiff's claim is meritless because "Title I of the ADA does not bar entities covered by the statute from offering different long-term disability benefits for mental and physical disabilities." EEOC v. Staten Island Savings Bank, 207 F.3d 144, 148 (2d Cir. 2000), aff'ing EEOC v. The Chase Manhattan Bank, No. 97-CV-6620, 1998 WL 851605 (S.D.N.Y. Dec. 8, 1998) (discussing LTD plan of Chase Manhattan Bank, defendant's predecessor in interest). The Court will not afford plaintiff leave to amend her ADA claim because to do so would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996).*fn1
Plaintiffs second claim, as contained in her affidavit, alleges that "bi-polar disorder is a chemically caused physical disease" and that she should have been treated like other individuals with physical disabilities under the LTD plan. Aff. at 4. Giving her papers a liberal construction, the Court construes plaintiff's new claim as a challenge to the LTD plan administrator's benefit eligibility determination, see ERISA, 29 U.S.C. § 1132; Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 109 (1989), factually predicated on defendant's allegedly improper application of the LTD plan discussed in her complaint. See Cuoco v. Moritsugu, 222 F.3d at 112.
Although defendant moves to dismiss pursuant to Rule 12(b)(6), it relies on documentation outside the complaint to support its argument that it acted within its discretion in denying benefits to plaintiff. Reply Mem. at 4. When "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment." Fed.R.Civ.P. 12(b); see also LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991). Before there can be a disposition on the claim, however, plaintiff, who is pro se, must receive notice pursuant to Local Rule 56.2. a copy of which is attached. Accordingly, plaintiff has 30 days to submit a responsive Local Rule 56.1 statement and any supporting affidavits or other materials pursuant to Fed.R.Civ.P. 56(e) showing that there is a genuine issue of fact for trial.*fn2 See Fed.R.Civ.P. 12(b)(6); Friedl v. City of New York, 210 F.3d 79, 83-84 (2d Cir. 2000) (nonmovant must be given opportunity to present supporting material when court converts motion to dismiss to one for summary judgment).
The Court grants defendant's Rule 12(b)(6) motion as to the ADA claim, sua sponte deems the complaint amended to assert an ERISA claim, converts defendant's Rule 12(b)(6) motion in regard to that claim to one for summary judgment pursuant to Rule 56, and grants plaintiff 30 days of the date from this memorandum and order to respond to the motion.
LOCAL CIVIL RULE 56.2. NOTICE TO PRO SE LITIGANT OPPOSING MOTION FOR SUMMARY JUDGMENT
The defendant in this case has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. This means that the defendant has asked the court to decide this case without a trial, based on written materials, including affidavits, submitted in support of the motion. THE CLAIMS YOU ASSERT TN YOUR COMPLAINT MAY BE DISMISSED WITHOUT A TRIAL IF YOU DO NOT RESPOND TO THIS MOTION by filing your own sworn affidavits or other papers as required by Rule 56(e). An affidavit is a sworn statement of fact based on personal knowledge that would be admissible in evidence as trial. The full text of Rule 56 is attached.
In short, Rule 56 provides that you may NOT oppose summary judgment simply by relying upon the allegations in your complaint. Rather, you must submit evidence, such as witness statements or documents, countering the facts asserted by the defendant and raising issues of fact for trial. Any witness statements, which may include your own statements, must be in the form of affidavits. You may ...