The opinion of the court was delivered by: William M. Skretny United States District Judge
In this case, Plaintiff Wendy Smith alleges Defendants Ford Motor Company ("Ford") and UAW Local 897 ("UAW") intentionally discriminated against her in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, and New York Human Rights Law. Ford and UAW each move pursuant to Rule 12(b)(6)*fn1 of the Federal Rules of Civil Procedure to dismiss Plaintiff's Complaint on the ground that Plaintiff did not serve Defendants within 120 days of filing her Complaint, as required under Rule 4(m). UAW also moves to dismiss pursuant to Rule 12(b)(6) on the ground that Plaintiff did not commence this action within the six-month statute of limitations governing a breach of duty of fair representation claim. For the reasons discussed below, Ford's Motion (Docket No. 8) is denied, and UAW's Motion (Docket No. 4) is denied.
The following facts, alleged in the Complaint, are assumed true for purposes of the instant motion. See National City Commercial Capital Co. v. Global Golf Inc., No. 09-CV-0307, 2009 WL 1437620, at *1 (E.D.N.Y. May 20, 2009). On or about August 7, 1995, Plaintiff began employment with Ford. (Complaint, Docket No. 1, ¶ 14.) Plaintiff is a member of UAW Local 897. (Id. ¶ 34.)
On November 21, 2002, Plaintiff was injured as a result of a workplace accident. (Id. ¶ 15.) Plaintiff eventually returned to work with medical restrictions on the types of work she could perform. (Id. ¶ 16.) Ford gave Plaintiff work that accommodated her restrictions. Id. Plaintiff alleges that Ford regarded her as disabled. (Id. ¶ 17.)
While performing work consistent with her medical restrictions, Plaintiff claims fellow employees and supervisors harassed, taunted, and ridiculed her because of her disability. (Id. ¶ ¶ 18, 19.) As required by contract, Plaintiff reported these incidents to her Ford supervisors and to UAW. (Id. ¶ 20.) Neither Ford nor UAW pursued her complaints. (Id. ¶ 21.)
On January 25, 2006, Ford terminated Plaintiff's employment. (Id. ¶ 25.) Plaintiff contends Ford terminated her employment because of her disability. (Id. ¶ 26.) She alleges that Ford still employs individuals with less seniority than herself in the position she held immediately prior to her termination. (Id. ¶ 23.)
As a member of UAW Local 897, Plaintiff asserts that she is entitled to representation in matters brought by and against Ford. (Id. ¶ 35.) Plaintiff requested representation. (Id. ¶ 36.) However, UAW refused to grieve Plaintiff's allegedly unlawful termination. (Id. ¶ 27.)
On July 25, 2006, Plaintiff filed a discrimination charge against Ford and UAW with the Equal Employment Opportunity Commission ("EEOC"). (Docket No. 1, Ex. A.) On March 30, 2007, the EEOC determined it was, "unable to conclude that the information obtained establishes violations of the statutes." (Id., Ex. B.) On April 2, 2007, Plaintiff received the EEOC's Dismissal and Notice of Rights, directing her to file any lawsuit based on her EEOC charge within 90 days. (Id.)
Plaintiff timely commenced this action by filing a Complaint in the United States District Court for the Western District of New York on June 28, 2007. (Docket No. 1.) The last day on which to timely serve the Summons and Complaint was Friday, October 26, 2007. Defendants were both served on Monday, October 29, 2007. (Docket Nos. 2 and 3.)
On November 16, 2007, UAW filed its Motion to Dismiss (Docket No. 4) and, on December 21, 2007, Ford filed its Motion to Dismiss (Docket No. 8). The motions are fully briefed and the Court ...