United States District Court, W.D. New York
August 22, 2005.
DEBRA L. GILMORE, Plaintiff,
UNIVERSITY OF ROCHESTER STRONG MEMORIAL HOSPITAL DIVISION, MARIE RAMPELLO, R.N., ALLEN IBRISIMOVIC, CHRISTIAN LEE JEFFERSON, CHARLES MURPHY, FAY NORTON, Defendants.
The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
DECISION AND ORDER
Plaintiff, Debra Gilmore, commenced this action against her
former employer, the University of Rochester, Strong Memorial
Hospital Division ("the University"), and several individual
defendants, alleging that she was unlawfully terminated on the
basis of her race and disability. Plaintiff also alleges that the
University unlawfully denied her unpaid leave so that she could
seek certain medical care. Plaintiff asserts claims under the
Americans with Disabilities Act of 1990 ("ADA"),
42 U.S.C. § 12101 et seq., § 504 of the Rehabilitation Act of 1973,
29 U.S.C. § 794(a), the Family and Medical Leave Act of 1993
("FMLA"), 29 U.S.C. § 2601 et seq., Titles VI and VII of the
Civil Rights Act of 1964 ("Title VI" and "Title VII"),
42 U.S.C. §§ 2000d, 2000e et seq., 42 U.S.C. § 1981, as amended by the Civil Rights Act of 1991 ("§
1981"), and the New York State Human Rights Law ("HRL"), N.Y.
Exec. L. § 296.
Plaintiff has moved to strike several of defendants'
affirmative defenses pursuant to Fed.R.Civ.P. 12(f). Defendants
have cross-moved to dismiss plaintiff's amended complaint for
failure to state a claim upon which relief can be granted
pursuant to Fed.R.Civ.P. 12(b)(6).*fn1 For the reasons that
follow, plaintiff's motion is denied, defendant's cross-motion is
granted in part, and the complaint is dismissed in part.
The complaint alleges the following facts. Plaintiff is a
47-year-old black female. She held the position of patient-unit
secretary at Strong Memorial Hospital ("Strong"), a division of
the University, for twenty-six years, until her termination on
June 13, 2003. Plaintiff was informed of her termination on that
date in a meeting with Nurse Manager Marie Rampello, union
delegate Sharon Hale, and then-human resources representative
Christian Jefferson. In a letter to plaintiff from Rampello
confirming the substance of their conversation that day, Rampello
recited several problems with plaintiff's performance. These
included: a 75% tardiness rate from February 3 to May 30, 2003; a
consistent failure to meet the "unit standard for physician order
transcription of one hour for admission orders and one and one-half hours for routine
orders"; and the use of profane language in a patient care area
on June 9, 2003. Complaint Ex. A.*fn2
Plaintiff now concedes that she had a serious drug addiction
problem. About nine months after her termination, plaintiff
entered the John L. Norris Addiction Treatment Center in
Rochester on March 17, 2004 for drug rehabilitation. After
completing a twenty-six-day inpatient program, plaintiff began
receiving outpatient treatment three days a week at Conifer
Counseling Services in Rochester. She alleges that she is no
longer using drugs. Complaint ¶ 14.
Plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission ("EEOC"), but the EEOC
dismissed plaintiff's administrative complaint on November 1,
2004 as untimely. Plaintiff does not now dispute that it was
In addition, prior to commencing this action, plaintiff's union
filed a grievance on her behalf pursuant to the terms of the
collective bargaining agreement ("CBA") between her union and the
University, seeking plaintiff's reinstatement and back pay. As of
the date that this action was commenced, the grievance was in
arbitration, as provided for by the CBA. See Declaration of
Allen Ibrisimovic (Dkt. #12-3) Ex. A, Art. XXX.*fn3
Plaintiff filed the complaint in this action on January 28,
2005. In addition to the University, plaintiff has sued five
individual defendants: Rampello; Jefferson; Allen Ibrisimovic,
the Senior Human Resources Representative at the University's
Medical Center; Fay Norton, the University's Manager of Labor Relations; and Charles Murphy, the University's
Vice President for Human Relations.
Plaintiff asserts three causes of action. The first, which is
brought against all defendants, alleges that plaintiff's
addiction to cocaine at the time of her termination constituted a
"disability" for purposes of the ADA, the Rehabilitation Act, and
the HRL, and that defendants terminated her on account of that
disability, in violation of those statutes. The second cause of
action, also brought against all defendants, alleges that
defendants terminated plaintiff on account of her race, in
violation of § 1981, Title VII, and the HRL.*fn4 The third
cause of action, which is brought only against the University,
alleges that the University violated the FMLA by not allowing her
to take unpaid leave to seek inpatient treatment for her
addiction, and by failing to post adequate notices advising
University employees of their rights under the FMLA.
I. Motions to Dismiss General Principles
On a motion to dismiss for failure to state a claim upon which
relief may be granted, the court must determine whether evidence
presented by the plaintiff that is consistent with the
allegations of the complaint would entitle her to judgment in her
favor. Fed.R.Civ.P. 12(b)(6). In ruling on such a motion, the
Court must read the plaintiff's complaint generously, "drawing
all reasonable inferences from the complaint's allegations," California Motor
Transport Co. v. Trucking Unlimited, 404 U.S. 508, 515 (1972),
and accepting "the material facts alleged in the complaint as
true." Frasier v. General Electric Co., 930 F.2d 1004, 1007 (2d
Consistent with those principles, the Court of Appeals for the
Second Circuit has stated that a "complaint should not be
dismissed pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state
a claim upon which relief can be granted `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.'"
Official Committee of Unsecured Creditors of Color Tile, Inc. v.
Coopers & Lybrand, LLP, 322 F.3d 147, 158 (2d Cir. 2003)
(quoting Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998)). A
court's task 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." Ryder Energy Distribution Corp. v. Merrill Lynch
Commodities Inc., 748 F.2d 774, 779 (2d Cir. 1984).
II. Defendant's Motion to Dismiss for Failure to State a
A. Plaintiff's Race Discrimination Claims
In her second cause of action, plaintiff asserts claims under
Title VII, § 1981, and the HRL, alleging that she was terminated
from her employment on account of her race. These claims must be
First, the Title VII claim is subject to dismissal for
plaintiff's failure to exhaust her administrative remedies. A
plaintiff may only bring suit in federal court under Title VII if
she has first exhausted her administrative remedies and obtained
a right-to-sue letter from the EEOC. "Exhaustion of
administrative remedies through the EEOC is an essential element
of the Title VII . . . statutory scheme and, as such, a precondition to bringing
such claims in federal court." Legnani v. Alitalia Linee Aeree
Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001).
To be timely, a Title VII complaint must be filed with the EEOC
within 300 days of the alleged discriminatory incident.
42 U.S.C. § 2000e-5(e). In general, the filing of an untimely charge will
not suffice for purposes of the exhaustion requirement. See,
e.g., E.E.O.C. v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1271
(11th Cir. 2002), cert. denied, 539 U.S. 941 (2003);
Bonilla v. Muebles J.J. Alvarez, Inc., 194 F.3d 275, 278
(1st Cir. 1999); Miller v. International Tel. & Tel. Corp.,
755 F.2d 20, 23 (2d Cir.), cert. denied, 474 U.S. 851 (1985);
see also National R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
110 (2002) ("a litigant has up to . . . 300 days after the
unlawful practice to file a charge with the EEOC") (emphasis
If, however, a claimant was "actively misled by his employer or
prevented in some extraordinary way from exercising his rights,"
the court may toll the running of the filing period to make
timely what would otherwise have been an untimely complaint.
Miller, 755 F.2d at 24; Smith v. American President Lines,
Ltd., 571 F.2d 102, 109 (2d Cir. 1978). The plaintiff has the
burden to prove that equitable tolling should apply. Miller,
755 F.2d at 24; Courtney v. La Salle Univ., 124 F.3d 499, 505
(3d Cir. 1997); Ross v. Buckeye Cellulose Corp., 980 F.2d 648,
661 (11th Cir. 1993), cert. denied, 513 U.S. 814 (1994);
Pinney Dock & Transp. Co. v. Penn Central Corp., 838 F.2d 1445,
1465 (6th Cir.), cert. denied, 488 U.S. 880 (1988);
Simmons v. Terrace Healthcare Center, Inc., No. 01 CV 3531,
2004 WL 555708, at *4 (S.D.N.Y. Mar. 19, 2004).
Here, the event giving rise to plaintiff's claim her
termination occurred on June 13, 2003, giving her until April
8, 2004 to file a charge with the EEOC. Although it is not clear
when plaintiff filed her EEOC complaint, plaintiff does not deny
that it was untimely. She attributes that fact to the University's failure to post adequate notices advising
employees of their rights and obligations under Title VII.
The complaint, however, states that plaintiff "did not learn of
[her rights under the relevant statutes] until she employed legal
counsel in mid-March of 2004." Complaint ¶ 16. It appears, then,
that plaintiff had roughly three weeks after retaining counsel to
file a charge with the EEOC, and she offers no explanation why
she did not do so or could not have done so. I therefore find no
basis to apply equitable tolling here. "Courts in this Circuit
and elsewhere recognize that, once a plaintiff retains counsel,
tolling generally ceases because plaintiff has `gained the means
of knowledge of her rights and can be charged with constructive
knowledge of the law's requirements." Pollock v. Chertoff,
361 F.Supp.2d 126, 131 (W.D.N.Y. 2005) (quoting Stallcop v. Kaiser
Found. Hosps., 820 F.2d 1044, 1050 (9th Cir.), cert.
denied, 484 U.S. 986 (1987)); see also Lynk v. Henderson, 98
Civ. 2086, 2000 WL 178859, *7 (S.D.N.Y. Feb. 15, 2000) ("A lack
of diligence on the part of plaintiff's attorney does not justify
equitable tolling"); Economou v. Caldera, No. 99 Civ. 12117,
2000 WL 1844773, *19-20 (S.D.N.Y. Dec. 18, 2000) ("Equitable
relief is particularly inappropriate where the plaintiff was
represented by counsel during the relevant period"), aff'd,
286 F.3d 144 (2d Cir.), cert. denied, 537 U.S. 975 (2002); accord
Mercado-Garcia v. Ponce Fed. Bank, 979 F.2d 890, 896 (1st
Cir. 1992); Daugherity v. Traylor Bros., Inc., 970 F.2d 348,
353 n. 8 (7th Cir. 1992); Beshears v. Asbill,
930 F.2d 1348, 1351 (8th Cir. 1991).*fn5 Aside from that problem, plaintiff has not pleaded sufficient
facts to support a claim of race discrimination under Title VII
or § 1981. To make out a prima facie case under either statute,
plaintiff must allege that she: (1) is a member of a protected
class; (2) was performing her duties satisfactorily; and (3) was
discharged under circumstances giving rise to an inference of
discrimination on the basis of her race. McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973); McLee v. Chrysler
Corporation, 109 F.3d 130, 135 (2d Cir. 1997). The same analysis
applies to claims under the HRL. See Dawson v. Bumble & Bumble,
398 F.3d 211, 217 (2d Cir. 2005) (stating that court analyzes HRL
claims employing the same analytic framework that it employs in
Title VII cases).
Here, it is questionable whether plaintiff was performing her
duties satisfactorily, since she does not appear to dispute that
she was frequently late for work in the months leading up to her
termination, or that she used profane language in a patient care
area. In fact, it is her use of profane language that she claims
demonstrates discriminatory animus on the part of the University.
Specifically, plaintiff alleges that on or shortly before June
13, 2003, a nurse asked plaintiff to call the cashier's office.
Plaintiff complied, but also complained aloud that she "would
like to go to mother-fucking lunch sometime." Complaint ¶ 32.
Plaintiff alleges that the term "mother-fucker," and variations
thereof, is "an oath in common use among black Americans" that
"falls harshly on white ears." Complaint ¶ 34. She alleges that
other employees swore from time to time, but were not fired or
disciplined for doing so. Complaint ¶ 33. Even assuming the truth of these racial stereotypes concerning
the use and public acceptability of a particular expletive, I
cannot find that plaintiff has stated a viable claim. Misconduct
does not become legally protected merely because members of one
race are more likely to engage in it than others. An employer has
a legitimate right to lay down rules of behavior in the
workplace, and to enforce those rules. In effect, plaintiff is
suggesting that the University should have overlooked her use of
profanity because she is black, and is therefore more apt to
use certain swear words than white persons. I decline to so rule.
In addition, plaintiff's broad allegation that other employees
at Strong swore occasionally without being disciplined, without
more, is not suggestive of discrimination. She does not allege
that those other employees used this particular profanity, that
they swore around patients, or that none of those other employees
were black. In short, she has not stated a valid claim. See
Shoate v. City of Beloit Police Dep't, No. 03-C-0174, 2004 WL
502019, at *4 (W.D.Wis. Mar. 9, 2004) ("Plaintiff asserts that
non-African-American officers have been charged with using
profanity or with similar offenses and have not been brought up
on charges before the Police and Fire Commission. Without any
indication of who these officers were, what previous offenses
they might have committed or the nature of the offenses, the
assertion does not suggest discriminatory treatment").
B. Plaintiff's Claims Under the ADA, Rehabilitation Act and
1. Failure to Exhaust Administrative Remedies
The University asserts that plaintiff's ADA claim should be
dismissed for failure to exhaust administrative remedies. I
agree. ADA claims are subject to the same exhaustion requirements
as Title VII claims. See Curto v. Edmundson, 392 F.3d 502, 503
(2d Cir. 2004) (per curiam), cert. denied, 125 S.Ct. 2944 (2005); Jones v. Runyon, 91 F.3d 1398,
1399 n. 1 (10th Cir. 1996), cert. denied, 520 U.S. 1115
(1997). Plaintiff's ADA claim is therefore dismissed for the same
reasons as her Title VII claim.
2. Exception for "Current" Users of Illegal Drugs
As a practical matter, dismissal of plaintiff's ADA claim makes
little difference because claims under the Rehabilitation Act are
analyzed under the same standards, and failure to exhaust is not
an issue.*fn6 See Henrietta D. v. Bloomberg, 331 F.3d 261,
272 (2d Cir. 2003) (noting that "unless one of th[e] subtle
distinctions [between the two acts] is pertinent to a particular
case, we treat claims under the two statutes identically");
Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 1999) ("Because Section 504 of the Rehabilitation Act
and the ADA impose identical requirements, we consider these
claims in tandem").*fn7
To prevail on a claim under the Rehabilitation Act, a plaintiff
must prove that: (1) she is an individual with a disability; (2)
she was "otherwise qualified" for a position; (3) she was denied
that position on the basis of her disability; and (4) the
employer receives federal funds. D'Amico v. City of New York,
132 F.3d 145, 150 (2d Cir.), cert. denied, 524 U.S. 911 (1998).
"An individual is otherwise qualified for a position is he is
able to perform the essential functions of the position, with or
without a reasonable accommodation." Id. at 151. The standards
under the HRL are essentially the same. See Hendler v. Intelecom
USA, Inc., 963 F.Supp. 200, 210 (E.D.N.Y. 1997) ("The
legislative history of the [HRL] indicates that it was intended
to cover the same types of disabilities as protected under the
ADA and the Rehabilitation Act"), quoted in Reeves v. Johnson
Controls World Services, Inc., 140 F.3d 144, 155 (2d Cir. 1998).
The statute also provides that "the term `individual with a
disability' does not include an individual who is currently
engaging in the illegal use of drugs, when a covered entity acts
on the basis of such use." 29 U.S.C. § 705(20)(C)(i). It also
provides, however, that this exclusion for current drug users
does not extend to an individual who "has successfully completed
a supervised drug rehabilitation program and is no longer engaging in the
illegal use of drugs, or has otherwise been rehabilitated
successfully and is no longer engaging in such use," or who "is
participating in a supervised rehabilitation program and is no
longer engaging in such use."
29 U.S.C. § 705(20)(C)(ii).*fn8
The import of these provisions, then, is that drug addiction,
like alcoholism, is recognized as a disease that can be
disabling, but that current drug use disqualifies a person from
protection under these statutes. See Regional Economic Community
Action Program, Inc. v. City of Middletown, 294 F.3d 35, 46 (2d
Cir.), cert. denied, 537 U.S. 813 (2002); Buckley v.
Consolidated Edison Co., 155 F.3d 150, 154 (2d Cir. 1998) (in
banc). "The statute plainly is designed to protect rehabilitated
or rehabilitating substance abusers from retroactive punishment
by employers." Teahan v. Metro-North Commuter R.R. Co.,
951 F.2d 511, 518 (2d Cir. 1991), cert. denied, 506 U.S. 815
(1992). To prevail on a claim under the Rehabilitation Act,
therefore, "a recovering drug addict or alcoholic must
demonstrate [not only] that [she] was actually addicted to drugs
or alcohol in the past, [but also] that this addiction
substantially limit[s] one or more of [her] major life
activities.'" Regional Economic Community Action Program,
294 F.3d at 47 (internal quotes omitted).
The University asserts that plaintiff has not stated a valid
claim under the Rehabilitation Act because, by her own admission,
she was using illegal drugs around the time of her discharge on
June 13, 2003. Plaintiff does not dispute that she was using
drugs at that time, but contends that there is a factual issue concerning the correct date of her discharge,
which is the relevant date for determining whether she was a
"current" user of illegal drugs. See Teahan, 951 F.2d at 518
("the relevant time for assessment of [an employee's] `current'
status is the time of his actual firing"). Plaintiff contends
that because the arbitration on the grievance that she filed over
her termination is currently pending, her June 2003 discharge is
only "conditional" at this point.
The relevant time period for determining whether an employee is
a "current" drug user, thereby precluding that employee from
being deemed disabled by virtue of her drug use, is the time of
her actual discharge. D'Amico, 132 F.3d at 150; Teahan,
951 F.2d at 518-19; McEniry v. Landy, 84 N.Y.2d 554, 560 (1994)
("the inquiry must focus on petitioner's status as of the time of
actual termination and not earlier") (citing Teahan). That does
not mean that the employee must have literally used drugs on the
date of her termination, but that her drug use must have been
"severe and recent enough to classify [her] as a current
substance abuser. . . ." D'Amico, 132 F.3d at 150.
As stated, plaintiff admits that she was addicted to cocaine on
June 13, 2003, when she received her termination letter. See
Complaint ¶ 18. Plaintiff argues, however, that because of the
pending arbitration on her grievance, there is a possibility that
she will be reinstated to her job at Strong. Plaintiff who
alleges that about nine months after her termination, she entered
and then successfully completed a drug rehabilitation program,
see Complaint ¶ 14 takes the position that her termination is
therefore "conditional," and that unless and until the
arbitration proceedings terminate in the University's favor,
there is no discharge date by which to determine whether she is a
"current" drug user.
I find this argument unpersuasive. First, plaintiff's reliance
on the Second Circuit's decisions in Teahan and D'Amico is
misplaced, because in each of those cases there was a clear
interval between the date on which the employer began taking steps to
discharge the plaintiff and the date on which the plaintiff was
In Teahan, for example, the employer charged the employee on
December 28, 1987 with excessive absenteeism (which had been
caused by his excessive drinking and drug use). Because the
applicable CBA mandated that certain procedures be followed
before an employee could be terminated, the employee was not
actually terminated until April 11, 1988, by which time he had
entered and successfully completed a drug rehabilitation program,
and his job performance had improved to a satisfactory level.
Similarly, in D'Amico, the plaintiff firefighter tested
positive for cocaine on December 13, 1988, but was allowed to
continue working on light duty pending the outcome of
disciplinary proceedings. The plaintiff entered an outpatient
drug treatment program, which he successfully completed on May
15, 1989. At a disciplinary hearing in June 1989, however, an
administrative law judge found the plaintiff guilty of cocaine
use in December 1988 and recommended that he be terminated.
Plaintiff's employment was terminated on September 8, 1989,
effective September 5.
In both Teahan and D'Amico, the plaintiffs filed actions
under the Rehabilitation Act, and the district courts granted
summary judgment in favor of the employers. Although the outcomes
on appeal were different, in each case the Second Circuit held
that the "relevant time" to assess the plaintiff's status as a
"current" abuser of alcohol or drugs was "the time of his actual
firing." Teahan, 951 F.2d at 518; accord D'Amico,
132 F.3d at 150.*fn9 In contrast, plaintiff in the case at bar was not simply
suspended on June 13, 2003; she was terminated outright. There is
no suggestion anywhere in the complaint that the University
merely commenced proceedings that could or did eventually lead to
her discharge; the June 13 letter from Rampello stated in no
uncertain terms that plaintiff's "employment was terminated
effective immediately." Complaint Ex. A. That could not have been
any clearer. Plaintiff ceased working for the University on June
13, 2003, and there is no indication in the complaint that she
worked a single day at Strong after that date.*fn10
That plaintiff subsequently invoked her right under the CBA to
file a grievance over her termination, or that the grievance is
now in arbitration, does not render her termination
"conditional," nor does it mean that there is no discharge date
for purposes of determining whether plaintiff falls within the
exclusion for "current" drug users. Plaintiff offers no authority
(other than Teahan and D'Amico, which are factually
inapposite) for such a proposition, which I find to be logically
unsupportable as well. In Teahan and D'Amico, the employers
took steps to determine whether the employees would be fired,
and by the time the employees actually were fired, they had
stopped using drugs. Here, the University did fire plaintiff,
at a time when she admits she was using cocaine. She is now
challenging that decision through the grievance process, but that
does not render her discharge "conditional."*fn11 As the Second Circuit stated in Teahan, "[t]he statute
plainly is designed to protect rehabilitated or rehabilitating
substance abusers from retroactive punishment by employers."
951 F.2d at 518 (emphasis added). Plaintiff would have the Court
turn this shield into a sword, allowing an employee to
successfully sue her former employer for disability
discrimination based on events (i.e. the cessation of drug use)
that occur after the employee's termination. That is not what
these statutes are designed to do.*fn12 C. Plaintiff's FMLA Claim
Plaintiff's FMLA claim is based on her allegation that the
University failed to post notices informing employees of their
rights under the FMLA as required by law.*fn13 As a result,
plaintiff contends that she was unaware that she was entitled to
up to twelve weeks of leave to go through drug rehabilitation.
Under the FMLA, a covered employee can take up to twelve weeks
of leave during any twelve-month period if the employee is
suffering from a "serious health condition" which makes her
"unable to perform the functions of [her] position."
29 U.S.C. § 2612(a)(1)(D); 29 C.F.R. § 825.114(a)(2)(i). A serious health
condition is one which requires "inpatient care in a hospital,
hospice, or residential medical care facility" or continuing
treatment by a health care provider. 29 U.S.C. § 2611(11).
Like the Rehabilitation Act, the FMLA does not contain any
blanket treatment of substance abuse as either qualifying or
disqualifying an employee from coverage. On the one hand,
substance abuse requiring rehabilitation can constitute a
"serious health condition" under the statute. See, e.g., Moorer
v. Baptist Memorial Health Care System, 398 F.3d 469, 488
(6th Cir. 2005) (alcoholism); 29 C.F.R. § 825.114(d)
("Substance abuse may be a serious health condition if the
conditions of this section [enumerating what is a `serious health condition'] are
met. FMLA leave may only be taken for treatment for substance
abuse by a health care provider or by a provider of health care
services on referral by a health care provider."
The applicable regulations also provide, however, that "absence
because of the employee's use of the substance, rather than for
treatment, does not qualify for FMLA leave."
29 C.F.R. § 825.114(d). In addition, the regulations state that
FMLA leave is available for treatment for substance
abuse provided the conditions of § 825.114 are met.
However, treatment for substance abuse does not
prevent an employer from taking employment action
against an employee. The employer may not take action
against the employee because the employee has
exercised his or her right to take FMLA leave for
treatment. However, if the employer has an
established policy, applied in a non-discriminatory
manner that has been communicated to all employees,
that provides under certain circumstances an employee
may be terminated for substance abuse, pursuant to
that policy the employee may be terminated whether or
not the employee is presently taking FMLA leave.
29 C.F.R. § 825.112(g).
To state a cause of action under the FMLA for denial of medical
leave, a plaintiff must ordinarily allege that: (1) she was an
eligible employee under the FMLA; (2) the defendant was an
"employer" withing the meaning of the FMLA; (3) plaintiff was
entitled to leave under the FMLA; (4) plaintiff requested leave
or gave adequate notice of her intent to take leave; and (5) she
was denied benefits to which she was entitled under the FMLA.
Geromanos v. Columbia Univ., 322 F.Supp.2d 420, 427 (S.D.N.Y.
2004). The University does not at this point appear to dispute
that plaintiff has adequately alleged the first three of those
five elements, but contends that plaintiff has not made out a
prima facie claim under the FMLA because she does not allege
that she requested leave or notified her superiors of her
intention to take medical leave. The University also notes that plaintiff alleges that she did not enter drug rehabilitation
until March 17, 2004, some nine months after her termination.
Complaint ¶ 14.
As stated, though, plaintiff alleges that she was unaware of
her rights under the FMLA at the time of her termination because
the University failed to post notices informing employees of
their rights under that Act, or to otherwise communicate to
plaintiff what her statutory rights were. She alleges that she
did not inform the University of her drug addiction prior to her
termination "because she thought that the defendant might view
her disabilities as shameful and view her as an undesirable
employee." Complaint ¶ 16.
As noted, the FMLA requires employers to post notices informing
them of their rights under the Act. See n. 12, supra. The
implementing regulations also set forth additional notice
provisions, see 29 C.F.R. §§ 825.301(a)(1), (a)(2),
(b)(1)(i)-(viii), and (b)(2)). But see Sarno v. Douglas
Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 161 (2d Cir. 1999)
(describing regulatory notice provisions as "highly ambiguous").
In Kosakow v. New Rochelle Radiology Associates, P.C.,
274 F.3d 706 (2d Cir. 2001), the plaintiff alleged that her former
employer had violated her rights under the FMLA by denying her
medical leave, but there was a dispute about whether she had
amassed the 1250 hours of work in the twelve months prior to her
leave request, which is a precondition to coverage under the Act.
See 29 U.S.C. § 2611(2)(A). The plaintiff also alleged,
however, that the employer had failed to post notices informing
employees of their FMLA rights, and that if she had known about
the minimum-hour requirement, she would have made sure to work
the necessary hours before submittng her leave request. On appeal from the district court's grant of summary judgment
for the employer, the Second Circuit vacated and remanded, in
part because of the plaintiff's allegations concerning the
employer's failure to post required notices. In doing so, the
court noted the existence of case law standing for the
proposition (the validity of which the court found it unnecessary
to address) that "under the proper circumstances, a distinct
cause of action lies for an employer's failure to post a notice
where that failure leads to some injury," such as where the lack
of notice causes an eligible employee to unwittingly forfeit his
FMLA rights. Id. at 723 (citing Fry v. First Fidelity
Bancorporation, No. Civ. A. 95-6019, 1996 WL 36910 (E.D.Pa. Jan.
30, 1996). Under that principle, the court stated, only an
eligible employee (i.e., one who has worked the minimum number
of hours) is entitled to pursue a claim under the FMLA. Id. at
The Kosakow court added, however, that even with an otherwise
ineligible employee, "nothing prevents a court from exercising
its equitable powers to estop a party from raising a particular
claim or defense. . . . If all the elements of equitable estoppel
are met, an employer may be estopped from challenging an
employee's eligibility as a result of the employer's misconduct
in failing to post the required notice." Id. The court
explained that "[u]nder federal law, a party may be estopped from
pursuing a claim or defense where: 1) the party to be estopped
makes a misrepresentation of fact to the other party with reason
to believe that the other party will rely upon it; 2) and the
other party reasonably relies upon it; 3) to her detriment."
Id. (citing Heckler v. Community Health Services of Crawford
County, Inc., 467 U.S. 51, 59 (1984)).
Stating that "[w]hether equitable estoppel applies in a given
case is ultimately a question of fact," id. at 725, the court
found that, even assuming that the plaintiff in Kosakow would
be unable to show that she had met the minimum-hours requirement
for coverage under the FMLA, she "ha[d] raised a genuine issue of fact with respect to the second and
third elements of equitable estoppel." Id. at 725. The court
concluded that the defendant
New Rochelle was under a legal duty to inform its
employees of the protections of the FMLA and what was
required of its employees in order that they qualify
for those protections. If New Rochelle failed to post
the required notices or include the required
information in its employee manual, then New Rochelle
failed to fulfill this legal duty and would have
deprived Kosakow of the opportunity to take her leave
under the shelter of the FMLA. In such circumstances,
it could not be argued that Kosakow had not met the
requirements of the statute if this shortcoming were
a result of New Rochelle's failure to relay those
requirements to her.
Id. at 727.
The case at bar presents a different factual situation, but
arguably the same principles should apply. There is no dispute
here that plaintiff had worked the requisite number of hours.
Instead, plaintiff alleges that she did not even know that she
could ask for medical leave to seek drug treatment because the
University failed to inform her of that fact by posting notices
in her workplace. The University contends in response that
plaintiff's own, admitted actions particularly her delay in
seeking treatment until months after her termination, plus her
admission that at the time of her discharge "she had accumulated
some sick leave and several weeks vacation time," Complaint ¶ 7
belie her allegation that, had she been aware of her eligibility
to do so, she would have sought FMLA leave to enter an inpatient
drug rehabilitation program on or prior to June 13, 2003.
That may be a reasonable inference, but it is not one that the
Court can properly draw on a motion to dismiss under Rule
12(b)(6). The fact that plaintiff had unused vacation time
available to her at the time of her discharge might tend to
undercut her allegation that, had she been aware of her rights,
she would have taken medical leave under the FMLA to seek drug
treatment, but it does not mean that she has not stated a
facially valid claim, at least at the pleading stage.
Conceivably, an employee who does not know that she might be entitled to leave
under the FMLA to seek help with a drug problem might be loath to
take vacation time to do so, out of fear that the employer would
get word of the reason for her "vacation" and fire her. Likewise,
one might reasonaby conclude from the fact that plaintiff did not
enter an inpatient program until months after her discharge that
she had no desire to seek rehabilitation in June 2003, but again,
to draw such a conclusion would require the Court "to assay the
weight of the evidence which might be offered in support" of
plaintiff's claim, Ryder Energy Distribution Corp.,
748 F.2d at 779, which is impermissible when deciding a motion to dismiss for
failure to state a claim.
This should not be taken to mean that the Court finds that
plaintiff did have a right under the FMLA to medical leave for
drug treatment, or that she is likely to prevail on this claim.
Both this claim and plaintiff's Rehabilitation Act claims have
some obvious weaknesses, but it is not the Court's task at this
point to decide whether I think she will prevail; it is only to
determine whether, based on the facts alleged, she might
prevail, and I am unable to say, based solely on the allegations
in the complaint, that she cannot.
As stated, the FMLA does provide under some circumstances for
medical leave to seek help with substance abuse problems, but it
also permits termination of an employee who is using drugs,
pursuant to "an established policy, applied in a
non-discriminatory manner that has been communicated to all
employees, that provides under certain circumstances an employee
may be terminated for substance abuse. . . ."
29 C.F.R. § 825.112(g) (emphasis added). What is disputed here, though, is exactly what, if anything, was "communicated to
all employees" concerning employee drug abuse.*fn14
In that regard, I note that the University has submitted
affidavits of two individuals, Ibrisimovic and Kathy Miner, the
University's Human Resources Manager of Employment, in which they
make certain assertions about what notices relating to the FMLA,
Rehabilitation Act and other employment-related statutes are
posted at the University, and where they are located. See Dkt.
##123-, 12-4, and 19-1. Plaintiff has also submitted a
declaration refuting Miner's and Ibrisimovic's assertions. Dkt.
"When matters outside the pleadings are presented in support
of, or in response to a Rule 12(b)(6) motion, "a district court
must either `exclude the additional material and decide the
motion on the complaint alone' or `convert the motion to one for
summary judgment under Fed.R.Civ.P. 56 and afford all parties the
opportunity to present supporting material.'" Friedl v. City of
New York, 210 F.3d 79, 83 (2d Cir. 2000) (quoting Fonte v.
Board of Managers of Continental Towers Condominium,
848 F.2d 24, 25 (2d Cir. 1988)). "Thus, a district court errs when it
`consider[s] affidavits and exhibits submitted by' defendants
. . . in ruling on a 12(b)(6) motion to dismiss." Id. (quoting
Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir. 1991). As explained above, this notice issue is central to the merits
of plaintiff's claims under the FMLA and the Rehabilitation Act.
From both a legal and factual standpoint, however, it has not
been adequately addressed by the parties, and this issue seems
incapable of resolution without resort to materials outside the
four corners of the complaint. Since discovery in this case is
not yet complete, I believe that converting the motion into a
summary judgment motion is not appropriate at this point.
Accordingly, to the extent that the Court has not otherwise ruled
on the issues raised by the motion, the Court denies the
University's motion to dismiss without prejudice to the filing of
a motion for summary judgment pursuant to Rule 56(c) of the
Federal Rules of Civil Procedure should the facts warrant it,
under principles set forth in Rule 11, Federal Rules of Civil
Procedure. See Twisted Records v. Rauhofer, No. 03 Civ. 2644,
2005 WL 517328, at *4 (S.D.N.Y. Mar. 3, 2005) (where parties have
not had a reasonable opportunity to present all material made
pertinent to the motion by Rule 56, "the motion under Rule
12(b)(6) is appropriately denied without prejudice"); Madison v.
Wright, No. 02 Civ. 10299, 2004 WL 816429, at *2 (S.D.N.Y. Apr.
13, 2004) (denying motion to dismiss without prejudice with
instructions to refile as a motion for summary judgment); Reid
v. Marrinaccio, No. 00 Civ. 5164, 2003 WL 289832, at *1
(S.D.N.Y. Feb. 10, 2003) (same).
III. Plaintiff's Motion to Strike
Plaintiff has moved to strike certain affirmative defenses and
individual paragraphs of defendants' answer, largely because
plaintiff believes that the objected-to portions of the answer
contain misstatements of fact or law. To a great extent, this
motion is moot because many of the affirmative defenses relate to
plaintiff's claims that have now been dismissed.
To the extent that the motion is not moot, it is denied.
Motions to strike are disfavored and will not be granted unless
it is clear that the allegations in question can have no possible
bearing on the subject matter of the complaint, or unless it appears to a
certainty that plaintiff would succeed despite any facts which
could be proved in support of the defense. William Z. Salcer,
Panfeld, Edelman et al. v. Envicon Equities Corp., 744 F.2d 935,
939 (2d Cir. 1985), vacated on other grounds, 478 U.S. 1015
(1986); Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893
(2d Cir. 1976); Nextel of New York, Inc. v. City of Mount
Vernon, 361 F.Supp.2d 336, 340 (S.D.N.Y. 2005); Gleason Works
v. Oerlikon Geartec AG, 238 F.Supp.2d 504, 520 (W.D.N.Y. 2002).
I do not find that the defenses in question are insufficient as a
matter of law, or that plaintiff will be prejudiced by allowing
the University to assert them. The validity of these defenses can
best be tested in the context of a summary judgment motion or at
Plaintiff's motion to strike (Dkt. #7) is denied.
Defendants' motion to dismiss the complaint (Dkt. #12) is
granted in part. Plaintiff's claims under the Americans with
Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., §
504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.,
and 42 U.S.C. § 1981, are dismissed.
In all other respects, defendants' motion to dismiss is denied.
IT IS SO ORDERED.