The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff Barbara McMillin, ("McMillin"), proceeding pro se,*fn1 brings this action pursuant to the Americans with Disabilities Act ("ADA") claiming that defendant United Airlines ("United") unlawfully discriminated against her on the basis of a disability. Specifically, plaintiff, who is a former employee of the defendant, alleges that she suffers from Raynaud's Syndrome, and that the defendant has failed to rehire her because of her condition.
Defendant denies plaintiff's claims, and moves to dismiss plaintiff's Complaint on grounds that the Complaint is untimely under the Statute of Limitations; that her claims are barred under the doctrine of res judicata, and that her claims are barred as a result of United Airlines' previous entrance into bankruptcy proceedings For the reasons set forth below, I find that plaintiff's allegations fail to state a claim of discrimination or retaliation, and that her discrimination claims are time-barred. Accordingly, I grant defendant's motion to dismiss plaintiff's Complaint.
Plaintiff Barbara McMillin worked for defendant United Airlines from 1997 to 2000. In March 2000, while still employed by United, plaintiff accepted a position as a flight attendant with American Airlines, and provided United with a letter notifying United that she was resigning from the company, and that she intended to use her two-weeks of unused vacation immediately in lieu of working her final two weeks.*fn2 Plaintiff immediately began her employment with American Airlines, but decided that she didn't like it, and attempted to return to United, claiming that she had not resigned, but instead, had just used vacation time. Defendant informed her that her employment had been terminated as a result of her resignation.
Thereafter, plaintiff, (who used a different last name at that time) brought the case Chille v. United Airlines, 00-CV-6571(L), before the Honorable David G. Larimer of this Court. In that case, plaintiff alleged that United had failed to accommodate her alleged disability. Although plaintiff sought reinstatement with United, she acknowledged in her Amended Complaint that she had been placed on a "do not hire" list as a result of her previous employment history with United. Chille v. United Airlines was dismissed by Judge Larimer on August 8, 2006 on grounds that plaintiff's claims were barred by defendant's bankruptcy proceedings because plaintiff had failed to file any notice of claim against United with the Bankruptcy Court. Judge Larimer's Decision and Order was affirmed by the Second Circuit Court of Appeals on August 9, 2007.
On January 16, 2007, plaintiff filed a new charge of discrimination with the New York State Division of Human Rights, claiming that United discriminated against her by failing to rehire her, and retaliated against her for filing charges of discrimination against United in 2000. Specifically, plaintiff alleged in her administrative complaint that in 2006, she had applied for several jobs with United, but that she was not hired. The United States Equal Employment Opportunity Commission dismissed plaintiffs complaint, and on September 17, 2007, plaintiff filed the instant action claiming that United discriminated against her on the basis of her disability, and retaliated against her for previously complaining of discrimination. In her federal Complaint, plaintiff also alleges that she was asked "inappropriate" questions about her disability by a representative of United in May 2007, in connection with an application for employment.
I. Legal Standards for evaluating a Motion to Dismiss
Defendant moves to dismiss plaintiff's Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure an claiming that plaintiff's claims are untimely, (and therefore this court lacks jurisdiction over them) and that she has failed to state a claim upon which relief can be granted. When evaluating a Rule 12(b)(6) motion, the court must ascertain, after presuming all factual allegations in the pleading to be true and viewing them in the light most favorable to the plaintiff, whether or not the plaintiff has stated any valid ground for relief. Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir. 1993), cert. denied 513 U.S. 1014 (1994). The court may grant a Rule 12(b)(6) motion only where "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). "This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se." Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998).
II. Plaintiff has Failed to Establish a Prima Facie Case of Disability Discrimination
Plaintiff alleges that she was not rehired by United in 2006 or 2007 because United discriminated against her on the basis of her disability, and retaliated against her for her previously filing claims of discrimination. To state a prima facie case of discrimination under the ADA, a plaintiff must demonstrate that (1) she is a handicapped person within the meaning of the ADA; (2) she is otherwise qualified to perform the duties of her former job; (3) adverse employment action was taken against her because of her handicap; and (4) that her employer is subject to the anti-discrimination provisions of the ADA. See Joyce v. Suffolk County, 911 F.Supp. 92, 94 (E.D.N.Y. 1996) (citations omitted). Once a plaintiff has stated a prima facie case of discrimination, the defendant must proffer a legitimate, non-discriminatory reason for taking the alleged adverse action against the plaintiff. If the defendant satisfies this requirement, the burden then shifts back to the plaintiff to rebut defendant's proffered reason by demonstrating that the defendant's explanation is either pretextual or not worthy of credence. See Tomka v Seiler, 66 F.3d 1295, 1308 (2nd Cir. 1995).
In the instant case, I find that the plaintiff has failed to establish that she was subjected to an adverse employment action because of her disability, and therefore, has failed ...