The opinion of the court was delivered by: William M. Skretny United States District Judge
In this case, Plaintiff Timothy Morris alleges Defendants Ford Motor Company ("Ford") and UAW Local 897 ("UAW") intentionally discriminated against him 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 his 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. 9) is denied, and UAW's Motion (Docket No. 4) is denied.
The following facts, which are 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 May 22, 1992, Plaintiff began employment with Ford. (Complaint, Docket No. 1, at ¶ 14.) Plaintiff is a member of UAW Local 897. (Id. at ¶ 37.)
On March 8, 1993, Plaintiff was injured as a result of a workplace accident. (Id. at ¶ 15.) Plaintiff eventually returned to work with medical restrictions on the types of work he could perform. (Id. at ¶ 16.) On March 8, 1999, Plaintiff was again injured as a result of a workplace accident. (Id. at ¶ 17.) Plaintiff again returned to work with medical restrictions on the type of work he could perform. (Id. at ¶ 18.) Ford gave Plaintiff work that accommodated his restrictions. Id. Plaintiff alleges that Ford regarded him as disabled. (Id. at ¶ 17.)
While performing work consistent with his medical restrictions, Plaintiff claims fellow employees and supervisors harassed, taunted, and ridiculed him because of his disability. (Id. at ¶ 20, 22.) Plaintiff's harassers made verbal comments and labeled his work station "Handicap". (Id. at ¶ 21.) As required by contract, Plaintiff reported these incidents to his Ford supervisors and to UAW. (Id. at ¶ 23.) Neither Ford nor UAW pursued his complaints. (Id. at ¶ 24.)
On "January 25, 2007 (sic)", Ford terminated Plaintiff's employment. (Id. at ¶ 25.)
Plaintiff contends Ford terminated his employment because of his disability. (Id. at ¶ 29.)
He alleges that Ford still employs individuals with less seniority than himself in the position he held immediately prior to his termination. (Id. at ¶ 26.)
As a member of UAW Local 897, Plaintiff asserts that he is entitled to representation in matters brought by and against Ford. (Id. at ¶ 38.) Plaintiff requested representation. (Id. at 39.) However, UAW refused to grieve Plaintiff's allegedly unlawful termination. (Id. at ¶ 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 ...