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BALDWIN v. LIJ NORTH SHORE HEALTH SYSTEM

October 12, 2005.

LESLIE BALDWIN, Plaintiff,
v.
LIJ NORTH SHORE HEALTH SYSTEM, Defendant.



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.

  I. BACKGROUND

  A. Procedural History

  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.

  C. Factual Background

  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 ...


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