The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
The pro se plaintiff Leslie Baldwin ("Baldwin" or the
"plaintiff") alleges that the defendant LIJ North Shore Health
System ("LIJ" or the "defendant"), her former employer, violated
Title VII of the Civil Rights Act of 1964, as codified,
42 U.S.C. §§ 2000e to 2000e-17 (amended in 1972, 1978 and by the Civil
Rights Act of 1991, Pub.L. No. 102-166) ("Title VII") by
creating unequal terms and conditions of her employment because of her race and gender. She also alleges that
her employer retaliated against her for complaining that she was
discriminated against, and terminated her employment. Presently
before the Court is a motion by the defendant pursuant to Federal
Rule of Civil Procedure 12(b)(6) to dismiss the complaint for
failure to state a claim upon which relief can be granted.
On March 16, 2004, the plaintiff filed a timely charge of
discrimination with the New York State Division of Human Rights
("NYSDHR"). The plaintiff's charge was dual-filed with the United
States Equal Opportunity Commission ("EEOC"). On March 17, 2005,
the EEOC issued a Notice of Right to Sue to the plaintiff. On May
16, 2005, the plaintiff commenced this action within ninety days
of receipt of the Notice, claiming that the defendant violated
the provisions of Title VII.
On July 5, 2005, the defendant made the present motion pursuant
to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("
Fed.R.Civ.P.") to dismiss the complaint for failure to state a
claim for which relief may be granted. On July 18, 2005, the same
day that the plaintiff filed an affidavit in opposition to the
defendant's motion, the plaintiff submitted a letter seeking to
amend the complaint. The proposed amended complaint differs from
the original complaint insofar as it identifies the plaintiff's
race and adds claims of retaliation and unequal terms and
conditions of employment. The defendant has filed a reply memorandum in further
support of its motion to dismiss and in opposition to the
plaintiff's request for leave to amend the complaint.
B. As to Plaintiff's Amended Complaint
Fed.R.Civ.P. 15(a) provides that a party is entitled to
amend its pleading "once as a matter of course at any time before
any responsive pleading is served." Here, the defendant filed a
motion to dismiss. A motion to dismiss is not a responsive
pleading and, thus, the plaintiff's amended complaint is properly
before the court. Barbara v. New York Stock Exchange, Inc.,
99 F.3d 49, 56 (2d Cir. 1996).
Furthermore, concurrently with the submission of her amended
complaint the plaintiff filed an affidavit in opposition to the
defendant's motion to dismiss. The plaintiff's affidavit includes
additional factual allegations regarding her treatment while
employed by LIJ and annexes the plaintiff's NYSDHR complaint. In
consideration of the plaintiff's pro se status and the liberal
rules regarding amendments to pleadings, the Court will treat the
factual allegations in the affidavit and its attachments as
amendments to the complaint. See Brooks v. Hevesi, No. 95
Civ. 3209 (JSM), 1995 WL 758611 (S.D.N.Y. Dec. 22, 1995).
Accordingly, the motion to dismiss will be considered as being
directed at the amended complaint. See Levy v. Lerner,
853 F. Supp. 636, 638 (E.D.N.Y. 1994). The defendant will not suffer any prejudice from this because LIJ has addressed the amended
complaint in its reply memorandum in further support of its
motion to dismiss.
The following facts are derived from the amended complaint and
are taken as true for the purposes of this motion.
The plaintiff, who is black, began working for LIJ in July of
1997 as a "Patient Care Associate." The plaintiff "love[d]" her
job, maintained a "satisfactory" attendance record, and her
"performance was alway[s] good." On December 29, 2003, the
plaintiff received two disciplinary warnings for unspecified
"performance issues" that arose sometime during November and
December of 2003. The warnings were issued by a Ms. McGlynn, a
white nursing director at LIJ. Ms. McGlynn informed the plaintiff
that she was being suspended and that she should speak to a Mr.
Perez, who is involved with LIJ's "Employee Assistan[ce]
Program." Mr. Perez is Hispanic. The plaintiff claims she met
with Ms. McGlynn and Mr. Perez several times between December 29,
2003 and January 20, 2004 concerning the her suspension. The
plaintiff was not allowed to return to work during that period of
time, and has not returned to work. According to LIJ she was
terminated on January 4, 2004. Although the plaintiff does not
describe the "performance issues" that led to her suspension and
eventual termination, the plaintiff claims that "[w]hite
co-workers who have been accused of the [sic] doing the same thing I was counseled and suspended for
have not been disciplined and/or suspended."
In addition, the plaintiff claims that at some point prior to
her suspension and termination, she twice became ill when three
female co-workers allegedly poisoned her drinking water. The
precise dates of these incidents are not clear. The plaintiff
submitted a letter to the EEOC with her original complaint that
places the poisonings in March, presumably of 2004, the same year
the letter is dated. However, the Court notes that this is
unlikely because it is clear from other documents comprising the
amended complaint that the plaintiff was no longer working for
LIJ at that time. The plaintiff sought medical attention for her
illness but was denied ...