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November 10, 2005.

FLORA LEPORE, Plaintiff,

The opinion of the court was delivered by: HAROLD BAER JR., District Judge


Plaintiff, Flora Lepore, brings claims against her employer, New York Hotel Trades Council and Employee Benefit Funds of New York (the "Funds"), under the Family and Medical Leave Act, 29 U.S.C. Section 2601 et seq. (the "FMLA" or "the Act"); Section 8-107(1)(a) of the New York City Human Rights Law; and Section 296 of the New York State Human Rights Law. She seeks damages in compensation for mental anguish, humiliation, embarrassment, and emotional injury; equitable relief,*fn1 including an injunction against the adverse actions complained of; reasonable attorney fees and costs; and such other relief as the Court deems proper.*fn2 The Funds moves to dismiss Lepore's claims pursuant to Federal Rule of Civil Procedure 12(b)(1) and (6) for lack of subject matter jurisdiction and for failure to state a claim. As explained below, the Court treats the 12(b)(6) motion as a partial motion for summary judgment. For the following reasons, the Funds' motion is GRANTED in part and DENIED in part.


  The Funds hired Lepore on or about April 14, 2002, as a Project Manager responsible for training its staff to use certain computer systems. (Compl. ¶¶ 5(a) & (i)). Between March 9 and March 19, 2005 — depending on which affidavit one believes — Lepore applied for intermittent leave under the FMLA because she suffered from severe depression.*fn3 (Compl. ¶ 5(r)); see 08/22/05 Affidavit of William Torres, the Funds' Director of Human Resources, in Supp. of Mot. to Dismiss ("Torres Aff.") ¶ 11; 09/12/05 Affidavit of Flora Lepore in Opp'n to Mot. to Dismiss ("Lepore Aff.") ¶ 5; Employee FMLA Request, Ex. 1 to 09/12/05 Affirmation of Ambrose Wotorson, counsel for Lepore ("Wotorson Aff."); 04/18/05 e-mail from Lepore to Torres, Ex. 12 to Wotorson Aff. On March 10, 2005, Lepore saw a listing on stating that a "NYC based healthcare and benefit management organization" had an immediate opening for a technical trainer. Listing, Ex. 20 to Wotorson Aff.

  A certification provided by Lepore's physician, Dr. Lorna Avila, indicated that Lepore's ailment qualified as a "serious health condition" under the Act, that Lepore was able to perform the essential functions of her job, but that she had to be absent from work for treatment. See Employee FMLA Request, Ex. 1 to Wotorson Aff. Dr. Avila also noted that Dr. Barbara Trilling, a therapist, would treat Lepore on a weekly basis for about twenty visits. See id.

  William Torres, the Funds' Director of Human Resources, informed Lepore in a memorandum dated April 6, 2005 that the Funds had conditionally approved her FMLA leave request, and would grant final approval when her physician clarified her anticipated leave schedule. See Torres Memorandum, Ex. 6 to Wotorson Aff. On April 11, 2005, Dr. Trilling faxed Torres that Lepore would need at least two days off a week — any two days would suffice — and that Torres and Lepore would need to work out an actual schedule. See Trilling Letter, Ex. 8 to Wotorson Aff.

  Lepore was intermittently absent from work for about ten days between March 10, 2005 and April 15, 2005. See Lepore Attendance Calendar, Ex. E to Torres Aff. The Funds assigned the absence codes "sick" or "vacation" to these days. See id. On or about April 18, 2005, Lepore filed a claim with Standard Life Insurance Company of New York for disability benefits for "mental stress" and "depression." See Lepore Aff. ¶ 17; Disability Claim Form, Ex. 11 to Wotorson Aff. Lepore took time off work pursuant to her disability plan from April 25, 2005 to June 18, 2005. See Lepore Aff. ¶ 17. Lepore was also away from work from June 20, 2005 until July 16, 2005. See Lepore Attendance Calendar, Ex. E to Torres Aff. The Funds designated the majority of this time "vacation." See id.

  Lepore returned to work on July 18, 2005 and is currently working in her former position, at the same rate of pay and with the same benefits as prior to her absence. See Torres Aff. ¶ 24. On July 22, 2005, Andrew Windsor, Lepore's supervisor, provided a performance evaluation for the period June 1, 2004 to June 1, 2005. See Performance Evaluation, Ex. 19 to Wotorson Aff. Windsor noted that Lepore had met or exceeded expectations in all performance factors except for communication and interpersonal skills where she only sometimes met expectations. See id. at 2-3. He also noted that Lepore sometimes spoke "in an abrupt and less than appropriate manner" and that she should cultivate "[a] more positive attitude towards her superiors and co-workers." Id. at 4. In early August 2005, Lepore sought to take another leave.*fn4 See Lepore Aff. ¶ 20. Windsor informed her that she had exhausted her available leave and would be subject to disciplinary measures if she took any additional leave. See id.


  A. Standard of Review

  Federal Rule of Civil Procedure 12(b)(6) provides that if "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment." A district court may convert a Rule 12(b)(6) motion into a motion for summary judgment without express notice to the parties. See In re G. & A. Books, Inc., 770 F.2d 288, 295 (2d Cir. 1985). The "essential inquiry" is whether the parties "should reasonably have recognized the possibility that the motion might be converted into one for summary judgment" or instead were "taken by surprise and deprived of a reasonable opportunity to meet the facts outside the pleadings." Id. Where both parties submit affidavits and exhibits in support of their positions, as they did here in relation to Lepore's FMLA claims, a court may fairly convert a Rule 12(b)(6) motion into one for summary judgment. See id.; see also Kennedy v. Empire Blue Cross and Blue Shield, 989 F.2d 588, 592 (2d Cir. 1993) (finding no error in district court's conversion of a Rule 12(b)(6) motion to one for summary judgment where plaintiff submitted materials extraneous to the pleadings).

  A court will not grant a motion for summary judgment unless it determines that there is no genuine issue of material fact and the undisputed facts are sufficient to warrant judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242, 250 (1986). In determining whether there is a genuine issue of material fact, the Court must resolve all ambiguities, and draw all inferences, against the moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam); Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987).

  B. The FMLA Claims

  1. Rights Under ...

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