The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff, Debra Gilmore, commenced this action against her former employer, the University of Rochester, Strong Memorial Hospital Division ("the University"), and several individual defendants, alleging that she was unlawfully terminated from her employment at Strong Memorial Hospital ("Strong") on the basis of her race and disability. Plaintiff also alleges that the University unlawfully denied her unpaid leave so that she could seek certain medical care. Plaintiff sued the University and several individuals, who at all relevant times were employees or officials of the University.
On September 1, 2005, the Court issued a Decision and Order that granted in part defendants' motion to dismiss the amended complaint, and dismissed plaintiff's claims under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101 et seq., § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794(a), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the New York State Human Rights Law ("HRL"), N.Y. Exec. L. § 296. That left only one cause of action in the case: plaintiff's claim against the University under the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq.
On October 14, 2005, plaintiff, without leave of court, filed a second amended complaint (Dkt. #24), naming the same defendants as before. The second amended complaint contains many of the same allegations as the first amended complaint, although it also adds some factual allegations. It asserts one cause of action against all the defendants for race discrimination under § 1981, Title VI of the Civil Rights Act of 1964 ("Title VI"), 42 U.S.C. §§ 2000d, and the HRL, and another cause of action against the University under the FMLA.
On October 27, 2005, defendants filed an answer to the second amended complaint. The answer asserts ten affirmative defenses, including the defenses that the Court's September 1 Decision and Order had dismissed all of plaintiff's claims except her FMLA claim against the University, and that the second amended complaint fails to state a claim upon which relief can be granted.
The day after filing their answer, defendants filed a motion to dismiss the second amended complaint. The bases for the motion are that: (1) plaintiff cannot amend her complaint without leave of court: (2) plaintiff has failed to state a claim under Title VI; and (3) the claims against all but one of the individual defendants should be dismissed for failure to plead their personal involvement in the acts giving rise to plaintiff's claims.*fn1
On November 28, 2005, plaintiff filed a cross-motion asking "for an order nunc pro tunc granting leave to amend the amended complaint if this Court determines that the second amended complaint was filed in error." Plaintiff also asks the Court to grant her further leave to amend "if this Court finds that her amended complaint or second amended complaint, or any portion thereof, fails to state a claim upon which relief may be granted." Dkt. #26.
Rule 15(a) of the Federal Rules of Civil Procedure provides in part that a "party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served ... . Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Although a motion to dismiss is not a "responsive pleading" for purposes of this rule, see Barbara v. New York Stock Exch., Inc., 99 F.3d 49, 56 (2d Cir. 1996), the Second Circuit has concluded that the right to amend terminates upon the issuance of an order granting a motion to dismiss. Elfenbein v. Gulf & Western Indus., Inc., 590 F.2d 445, 448 n. 1 (2d Cir. 1978); Swan v. Board of Higher Educ. of the City of New York, 319 F.2d 56, 60-61 (2d Cir. 1963). Although plaintiff contends that this rule does not apply where the court has only dismissed part of the complaint, at least one district court from within this circuit has applied the rule in that situation. See Fezzani v. Bear, Stearns & Co., No. 99CIV0793, 2005 WL 500377, at *2 (S.D.N.Y. Mar. 2, 2005).
As a practical matter, this is a moot issue, since plaintiff has now asked the Court to grant leave to amend nunc pro tunc. I see no point in denying that motion on purely procedural grounds, since plaintiff could simply move for leave to amend prospectively. I will therefore grant defendants' motion to dismiss the second amended complaint on the ground that plaintiff failed to seek leave to amend, but I will also consider plaintiff's motion for leave to amend on its merits, treating the second amended complaint as a proposed third amended complaint.
"[I]t is well established that leave to amend a complaint need not be granted when amendment would be futile." Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003). See also Jin v. Metro. Life Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002) (a district court has discretion to deny leave to amend a complaint "if there is a good reason for it, such as futility"); Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) ("Where it appears that granting leave to amend is unlikely to be productive, ... it is not an abuse of discretion to deny leave to amend") (per curiam). An amendment to a pleading is futile if it could not withstand a motion to dismiss under Rule 12(b)(6). Lucente v. International Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002) (citing Dougherty v. North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002)).
In my prior decision, I dismissed plaintiff's race discrimination claim--which is based on her termination for using profane language in a patient-care area --partly on the ground that "plaintiff's broad allegation that other employees at Strong swore occasionally without being disciplined, without more, is not suggestive of discrimination. She does not allege that those other employees used this particular profanity, that they swore around patients, or that none of those other employees were black." Dkt. #21 at 9. In the second amended complaint, plaintiff now alleges that certain other employees of the University, all of whom are white, and whom plaintiff identifies by name, have used profanities in the patient-care area where plaintiff worked, and that none of them were disciplined for doing so.
"A showing that the employer treated a similarly situated employee differently is 'a common and especially effective method' of establishing a prima facie case of discrimination ... ." McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001) (quoting Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 2001)). See also Graham v. Long Island R.R., 230 F.3d 34, 43 (2d Cir. 2000) ("A showing that similarly situated employees belonging to a different racial group received more favorable treatment can also serve as evidence that the employer's proffered legitimate, non-discriminatory reason for the adverse job action was a pretext for racial discrimination"); Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999) ("A plaintiff may support an inference of race discrimination by demonstrating that similarly situated employees of a different race were treated more favorably").
"Whether two employees are similarly situated ordinarily presents a question of fact for the jury." Graham, 230 F.3d at 39. See, e.g., McMillan v. Castro, 405 F.3d 405, 414-15 (6th Cir. 2005) (discussing correctness of district court's instructions to jury concerning whether plaintiff and another employee were similarly situated); Perez v. Texas Dep't of Criminal Justice, Institutional Div., 395 F.3d 206, 215 (5th Cir. 2004) (same). To show that she and certain other employees were similarly situated, "the plaintiff must show she was 'similarly situated in all material respects' to the ...