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 Monster.com stating that a "NYC based
healthcare and benefit management organization" had an immediate
opening for a technical trainer. Monster.com Listing, Ex. 20 to
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.
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).