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Male v. Tops Friendly Markets

September 15, 2008


The opinion of the court was delivered by: Michael A. Telesca United States District Judge



Plaintiff Julie E. Male ("plaintiff") commenced this employment discrimination action by filing a Complaint in the United States District Court for the Western District of New York on May 29, 2008 against defendant Tops Markets, LLC ("defendant" and/or "Tops"), incorrectly identified as Tops Friendly Markets. Defendant moves to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(6) on the basis that plaintiff's claims of disability discrimination, FMLA retaliation and Title VII post-retaliation claim are barred by the doctrine of res judicata. Specifically, defendant argues that plaintiff is asking this Court to re-adjudicate facts and claims that have been fully litigated in a prior action before this Court. Alternatively, defendant argues that plaintiff's Title VII post-retaliation claim also fails to provide defendant with proper notice as required under Rule 8(a)(2). Plaintiff objects to defendant's motion, and claims that the principle of res judicata does not apply because plaintiff's Amended Complaint in the first filed action was never properly before the Court. In addition, plaintiff contends that she has sufficiently pled post-termination retaliation under Title VII.

For the reasons set forth below, defendant's motion to dismiss is granted and plaintiff's Complaint is dismissed in its entirety with prejudice.


I. Prior Action Filed by Plaintiff

Plaintiff commenced the initial proceeding against Tops on November 19, 2007 by filing a Complaint with the clerk for the United States District Court, Western District of New York ("Male I").*fn1 See Affirmation of M. Moldenhauer, Esq. dated June 18, 2008, ¶4, Ex. A ("Moldenhauer Aff"). The Court stated in its April 22, 2008 Decision and Order that the Complaint contained no factual allegations to give a defendant notice of the basis for the action other than broadly alleging that the action was brought pursuant to the American with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA")*fn2 and for wrongful termination in retaliation for having engaged in protected activity under the ADA. See id., Ex. O. On November 26, 2007, defendant entered a notice of appearance, acknowledged receipt of the Complaint and filed its Answer. See id., Ex. B. On the same day defendant also filed a motion for judgment on the pleadings pursuant to Rule 12(c) seeking dismissal of the Complaint in its entirety due to Plaintiff's failure to comply with the minimum pleading requirements set forth in Rule 8(a)(2). See id., Exs. C,D,E. Plaintiff thereafter served Tops with a Summons and First Amended Complaint ("Amended Complaint") See id., Ex. J. The Amended Complaint included twelve pages of factual allegations and six separate causes of action including "Violation of the ADA," "Violation of the FMLA," "Retaliation under the FMLA," "Retaliation under the ADA," "Violations of the ADA," and the New York State Human Rights Law ("NYSHRL"). See id. On December 31, 2007, defendant responded to plaintiff's Amended Complaint by filing a Rule 12(b)(6) motion to dismiss claims under the ADA on timeliness grounds. See id., Exs. G,H,I. Further, defendant requested that the Amended Complaint be deemed a nullity because plaintiff did not seek leave of the Court to amend the Complaint as required by Rule 15(a). Plaintiff did not directly oppose both of Tops' motions to dismiss. Rather, she filed a Rule 15(a) motion seeking leave to amend her original Complaint. See id., Exs. K,L,M.

On April 22, 2008, this Court issued a Decision and Order granting defendant's motion for judgment on the pleadings, its motion to dismiss but denied plaintiff's motion to amend. See id., Ex. O. As a result, plaintiff's Complaint and Amended Complaint were both dismissed with prejudice. Judgment was entered by the Clerk of the Court on April 23, 2008. See id., Ex. P. Thereafter plaintiff filed a Notice of Appeal from the Court's April 22, 2008 Decision and Order. See id., Ex. Q.

II. Recent Action Filed by Plaintiff

Most recently, on May 29, 2008, plaintiff commenced this action against Tops by filing a Summons and Complaint with the Court ("Male II"). Following the heading in the Complaint entitled "FACTS," plaintiff set forth 80 paragraphs, enumerated 11 through 89. See Docket #1. The substance of paragraphs 11 through 84 of the Male II Complaint is identical to the substance of paragraphs 9 through 64 of the Amended Complaint in Male I, which was dismissed with prejudice by this Court on April 22, 2008. See Moldenhauer Aff., Exs. H and J. Each of those allegations relates to plaintiff's employment with and termination from Tops. See id. The five remaining paragraphs under "FACTS" (¶¶ 85-89) in the Male II Complaint relate to plaintiff's alleged unsuccessful attempts to obtain other employment following her termination from Tops. See Docket #1 ¶¶ 85-89. Paragraph 89 states that "[u]pon information and belief, plaintiff has been unable to gain employment because defendant has given her bad recommendations, in retaliation for having engaged in protected activity, i.e., filing an original EEOC charge and a federal lawsuit." See id., ¶89. Defendant argues that plaintiff does not articulate any grounds for her "information and belief." Nor does plaintiff identify any alleged conduct by defendants that, if proven, would establish a claim of retaliation.

Moreover, plaintiff fails to allege that the alleged "bad recommendations" were false, inaccurate or otherwise inappropriate. Instead, plaintiff summarily claims that her inability to find a job is attributable to the defendant. See id.


I. Motion to Dismiss

A complaint may be dismissed pursuant to Rule 12(b)(6) where the complaint fails to plead "enough facts to state a claim to relief that is plausible on its face." See Bell Atlantic v. Twombly, 127 S.Ct. 1955, 1974 (2007). As the Second Circuit has recently stated, Twombly requires that a plaintiff satisfy "a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." See Iqbal v. Hasty, 2007 WL 1717803 at *11 (2d Cir.2007)."[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of actions will not do." See Twombly, 127 S.Ct. at 1964. In order to state a claim, the factual allegations contained in the complaint "must be enough ...

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