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November 11, 2005.


The opinion of the court was delivered by: WILLIAM PAULEY III, District Judge


Plaintiff pro se Lawrence C. Jones ("Jones") brings this action against his former employer, Bellevue Hospital Center ("Bellevue"), and nine employees thereof (collectively, "Defendants"). Pursuing various legal theories, Jones challenges aspects of his employment and the circumstances of his termination. Bellevue moves to dismiss the Amended Complaint.*fn1 For the reasons set forth below, Bellevue's motion to dismiss is granted.


  The instant action is one of many suits Jones has filed against Bellevue and its employees. Jones, an African American male, was hired by Bellevue as a hospital police officer on November 12, 1985. (Amended Complaint, dated Dec. 2, 2004 ("Am. Compl.") at 4.) Jones alleges that throughout his employment, Defendants discriminated against him, failed to promote him and fostered a hostile work environment because of his race, color and gender. (Am. Compl. at 1-4; Plaintiff's Opposition to Bellevue's Motion to Dismiss, dated Apr. 1, 2005 ("Pl. Mem.") at 5-10.)*fn2

  Jones complained to Bellevue officers and directors about the discrimination he perceived and filed a union grievance. (Pl. Mem. at 7.) These matters were resolved in Bellevue's favor. (Pl. Mem. at 7.) On November 4, 1998, Jones filed a charge of discrimination with the New York State Division of Human Rights ("NYSDHR"). (Declaration of A. Ali Ayazi, dated Mar. 4, 2005 ("Ayazi Decl."), Ex. A; Pl. Mem. at 7.) The Equal Employment Opportunity Commission ("EEOC") acknowledged the filing of the NYSDHR charge on January 26, 1999 and informed Jones that he could request an EEOC notice of his right to sue if he chose to forego the NYSDHR investigation and proceed with a federal action. (Ayazi Decl. Ex. A.) Jones made such a request. On March 5, 1999, the EEOC responded that it would act on Jones' request within four weeks. (Ayazi Decl. Ex. A.) There is no indication that Jones received any notice from the EEOC thereafter; rather, Jones characterizes the March 5, 1999 letter as his notice of right to sue. (Pl. Mem. at 26.)

  On April 5, 1999, Jones filed a Title VII employment discrimination action against Bellevue and defendant Anthony Padula premised on the allegations in his NYSDHR charge. (Ayazi Decl. Ex. A: Complaint in Jones v. Padula, No. 99 Civ. 4192 (SHS) (THK) (S.D.N.Y.); Pl. Mem. at 9.) That case settled, with Jones executing a General Release of all then-existing claims against Bellevue and its employees. (Pl. Mem. at 32 & Ex. D: General Release, dated Feb. 9, 2001.) As stipulated by the parties, Judge Stein dismissed Jones' claims with prejudice. (Pl. Mem. Ex. D: So Ordered Stipulation of Discontinuance, dated Feb. 22, 2001.)

  On May 17, 2001, Plaintiff requested leave to care for elderly and ill members of his family. (Am. Compl. at 3; Pl. Mem. at 9-10, 16-18 & Ex. A: Request for Leave Under the Family and Medical Leave Act.) Bellevue denied this request. (Am. Compl. at 3.) Five days later, on May 22, 2001, Bellevue terminated Jones' employment. (Am. Compl. at 4; Pl. Mem. at 4 & Ex. A: Memorandum from Brian D. Ellis to Lawrence Jones, dated May 22, 2001.)

  In September 2001, Jones initiated an Article 78 proceeding in New York State court, alleging that his termination was discriminatory and retaliatory. (Ayazi Decl. Ex. D: Verified Petition in Jones v. New York City Health & Hosps. Corp., Index No. 117553, dated Sept. 4, 2001 (N.Y.Sup.Ct., N.Y. County); Pl. Mem. at 33.) The trial court dismissed Jones' claims and the Appellate Division affirmed. Jones v. New York City Health & Hosps. Corp., 5 A.D.3d 338, 773 N.Y.S.2d 552 (1st Dep't Mar. 30, 2004); Jones, Index No. 117553, slip op. (N.Y.Sup.Ct. June 13, 2002) (submitted by Bellevue as Ayazi Decl. Ex. E).

  Jones commenced the instant action on July 16, 2004. Liberally read in conjunction with his opposition papers, Jones' Amended Complaint advances a host of claims against Defendants. Jones claims that Defendants created a hostile work environment, discriminated against him on the basis of his race, color and gender and retaliated against him throughout his employment and when they terminated him, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the New York State Human Rights Law ("HRL"), N.Y. Exec. Law § 290 et seq. Jones also asserts claims under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq., and New York's "whistleblower" statutes, N.Y. Civ. Serv. Law § 75-b, N.Y. Labor Law § 740. Finally, in his opposition papers, Jones claims that Defendants violated his First Amendment right to free speech, thus attempting to state a claim under 42 U.S.C. § 1983. (Pl. Mem. at 40.)

  In December 2004, Jones filed with the EEOC a charge of discrimination that is identical to his Amended Complaint. (Ayazi Decl. Ex. G.) Jones has not notified this Court of any action taken by the EEOC in response to that charge.


  Bellevue moves to dismiss this action pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(5) and 12(b)(6). Because this Court dismisses Jones' Amended Complaint for failure to state a claim under Rule 12(b)(6), it addresses only that portion of Bellevue's motion.

  I. Motion to Dismiss Standard

  On a motion to dismiss pursuant to Rule 12(b)(6), a court must accept the material facts alleged in the complaint as true and construe all resonable inferences in a plaintiff's favor. Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 89-90 (2d Cir. 2004). A court should not dismiss a complaint for failure to state a claim "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." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); accord Jacobs v. Ramirez, 400 F.3d 105, 106 (2d Cir. 2005). Dismissal is proper when the plaintiff fails to plead the basic elements of a cause of action. See In re Scholastic Corp. Secs. Litig., 252 F.3d 63, 69 (2d Cir. 2001). The issue on a motion to dismiss is not ...

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