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 ...