The opinion of the court was delivered by: Nicholas G. Garaufis, U.S. District Judge.
Plaintiff Cynthia Gillingham ("Plaintiff" or "Gillingham") brings this action against Defendant Government Employees Insurance Company ("GEICO" or "Defendant") alleging, inter alia, disability discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq. ("ADA") and retaliation under the ADA. Defendant has submitted a motion for partial dismissal of Plaintiff's claims, specifically seeking dismissal of Claims 2 through 9 of the Plaintiff's Complaint,*fn1 claims not arising under the ADA. For the reasons that follow, Defendant's motion is granted in part and denied in part.
Plaintiff worked as a Claims Examiner for GEICO from 1985 to on or about August 30, 2004. (Complaint ("Compl." ¶ 9.) Plaintiff alleges that in 1997, she was injured in an automobile accident and "sustained substantial injuries to her back and neck, resulting in one or more permanent, chronic disabilities." (Plaintiff Cynthia Gillingham's Memorandum of Law in Opposition to Defendant's Rule 12(b)(6) Motion to Dismiss ("Pl. Mem.") at 1 (citing Compl. ¶ 10).) Plaintiff also alleges that she suffers from shifting of the knee caps, also known as disabilities of the patella alta, and degenerative disc disease. (Compl. ¶ 10.) She also suffers from clinical depression and general anxiety disorder. (Id.) Because of her disabilities, Plaintiff underwent back and spinal surgery on February 1, 1999 and spinal fusion surgery on June 13, 2000. (Compl. ¶ 11.)
Plaintiff alleges that "[i]t was only after the onset of Gillingham's disabilities in October 1997. . . that Gillingham was subjected to an ongoing and continuing course of discrimination, harassment, and retaliation culminating in her discharge from employment on August 30, 2004. (Compl. ¶¶ 9, 32, 40, 43, & 47.) Defendant's policies provide for GEICO employees to work a flex schedule. (Pl. Mem. at 2.) Plaintiff concedes that Defendant "[i]nitially . . . reasonably accommodated" Plaintiff's disabilities by allowing her to work a flex schedule from 5:30 a.m. until 1:15 p.m. (Compl. ¶ 23.) However, on August 3, 2003, Plaintiff alleges that she was "stripped of her accommodation" and was reassigned to a 7:00 a.m. to 3:30 p.m. shift. (Compl. ¶ 24.) Plaintiff further states that this new shift was in violation of her treating physicians' directions that she must avoid sitting more than thirty minutes and avoid stress, which was elevated when she worked later in the day, due to "mental exhaust[ion]." (Id.) Plaintiff complains that Defendant's actions "exacerbated" Gillingham's disabilities, "resulting in additional disabilities, and causing extreme and acute emotional distress and mental anguish." (Compl. ¶ 27.) Finally, Plaintiff's Complaint reviews a litany of ways in which Defendant allegedly harassed, discriminated against, and retaliated against Plaintiff through a "willful campaign of fear, intimidation, and harassment in an effort to constructively discharge Gillingham by forcing her to resign." (Id. (citing Compl. ¶¶ 31-44).)
Plaintiff states that, as a result of Defendant's actions "aggravating her disabilities," she had to take a leave of absence under the Family and Medical Leave Act ("FMLA"). (Id. at 3 (citing Compl. ¶ 44).) Defendant gave Plaintiff an ultimatum that, if she did not return to work by the end of her FMLA leave on August 30, 2004, she would be deemed to have voluntarily resigned her employment. (Id.) Defendant sent Plaintiff a letter advising her that her FMLA leave "will end of Friday August 27, 2004" and that her "options are to return to work [by that date] or to resign." (Compl. ¶ 44.) When Plaintiff did not return to work that day, Defendant deemed her to have quit her job; however, Plaintiff argues that she never resigned her employment. (Compl. ¶ 44.)
Plaintiff filed a complaint with the New York State Division of Human Rights ("NYSDHR") in April 2004 alleging disability discrimination under the New York State Human Rights Law ("NYSHRL") in that GEICO had refused to continue her schedule accommodation. (Compl. ¶ 34.) In June 2004, Plaintiff filed a second complaint with the NYSDHR alleging that she was retaliated against following the filing of that first NYSDHR complaint. (Id.) By Determination and Order After Investigation dated November 23, 2005, the NYSDHR dismissed Plaintiff's first complaint because she had no probable cause to believe that GEICO had discriminated against her on the basis of her disability or had failed to accommodate her alleged disability in violation of the New York Human Rights Law. Plaintiff cross-filed the first and second NYSDHR complaints with the U.S. Equal Employment Opportunity Commission (" EEOC"), which issued right to sue notices on March 15, 2006 and March 29, 2006. Plaintiff filed this lawsuit thereafter.
In her Complaint, Gillingham asserts a number of claims against GEICO, as follows: (1) Americans with Disabilities Act Violation; (2) Family and Medical Leave Act Violation; (3) State Human Rights Law Violation; (4) Unlawful Retaliation under Federal Law; (5) Unlawful Retaliation under State Law; (6) Violation of First Amendment; (7) New York Civil Rights Law Violation; (8) Violation of the New York State Constitution; and (9) Intentional and/or Negligent Infliction of Emotional Distress.
When a district court considers a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), it "must limit itself to the facts stated in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999). The Court must accept all well-pleaded factual allegations as true and draw all reasonable inferences in the plaintiff's favor. Koppel v. 4987 Corp., 167 F.3d 125, 130 (2d Cir. 1999). A motion to dismiss should only be granted if it "appears beyond doubt that the plaintiff can prove no set of facts ... which would entitle him to relief." King v. Simpson, 189 F.3d 284, 286-87 (2d Cir. 1999).
B. Plaintiff's FMLA Interference and Retaliation Claims (Claims 2 and 4)
In Claim Two, Plaintiff alleges that Defendant's actions violated the FMLA. Defendant argues that Plaintiff's FMLA (Claim 2) and FMLA retaliation (Claim 4) claims must be dismissed. The FMLA grants to eligible employees the right to take up to twelve work weeks per year of unpaid leave due to a serious health condition that prevents the employee from performing his or her work function. See 29 U.S.C. § 2612(a)(1). At the end of the leave the employee has the right pursuant to the FMLA to return to the position he or she had before or an equivalent position. See id. § 2614(a). "However this right is not absolute. The employee has no right to be restored to the position he or she held if the employee is unable to perform an essential function of the position because of a physical or mental impairment." Esser v. Rainbow Advertising Sales Corp., 448 F. Supp. 2d 574, 580 (S.D.N.Y. 2006) (citing Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 161 (2d Cir.1999). The FMLA prohibits an "employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under" the statute. 29 U.S.C. § 2615(a)(1). Furthermore, the statute "'creates a private right of action . . . against any employer . . .' should that employer 'interfere with, restrain, or deny the exercise of' FMLA rights." Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 174 (2d Cir. 2006) (citing Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721, 724-25 (2003)).
A plaintiff may raise separate causes of action under the FMLA for "interference" and "retaliation." See Potenza v. City of New York, 365 F.3d 165, 167 (2d Cir. 2004).
i. FMLA Interference Claim (Claim 2)
To establish a prima facie case for interference under the FMLA, a plaintiff must establish: "(1) that she is an eligible employee under the FMLA; (2) that defendants constitute an employer under the FMLA; (3) that she was entitled to leave under the FMLA; (4) that she gave notice to defendants of her intention to take leave; and (5) that defendants denied her benefits to which she was entitled by the FMLA." Kennebrew v. N.Y.C. Hous. Auth., No. 01 Civ. 1654, 2002 WL 265120, at *19 (S.D.N.Y. Feb.26, 2002) (internal quotation and citation omitted); see also Sabatino v. Flik Int'l Corp., 286 F. Supp. 2d 327, 335-36 (S.D.N.Y. 2003); Geromanos v. Columbia Univ., 322 F. Supp. 2d 420, 427 (S.D.N.Y. 2004) (holding that to make out a claim for interference under the FMLA, a plaintiff must show that "she was denied benefits to which she was entitled under the FMLA"); Roberts v. Ground Handling, Inc., 2007 U.S. Dist. LEXIS 23441, at *25 (S.D.N.Y. 2007). Here, Defendant contests Plaintiff's establishment of the fifth element set forth above.
With regard to the fifth element, that a defendant denied a plaintiff benefits to which he or she is entitled under the FMLA, the Second Circuit has held that --
A plaintiff need only prove by a preponderance of the evidence that her taking of FMLA-protected leave constituted a negative factor in the decision to terminate her. She can prove this claim, as one might any ordinary statutory claim, by using either direct or circumstantial evidence, or both. . ...