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August 22, 2005.

DEBRA L. GILMORE, Plaintiff,

The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District


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 untimely.

  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 Cir. 1991).

  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 Claim

  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 dismissed.

  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 omitted).

  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 ...

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