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Carmen Parada v. Banco Industrial De Venezuela

February 15, 2011


The opinion of the court was delivered by: Sidney H. Stein, U.S. District Judge.


Pro se plaintiff Carmen Parada brings this action against her former employer, Banco Industrial de Venezuela, C.A. ("BIV"), and several of its employees. Plaintiff alleges that defendants violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., the New York State Human Rights Law, N.Y. Exec. L. § 290, et seq., and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101, et seq., by discriminating against her because of her disability and then retaliating against her for asserting her rights. She also claims that BIV violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201, et seq., by denying her overtime wages. Plaintiff now seeks leave to file a second amended complaint to add another defendant, and defendants have moved pursuant to Fed. R. Civ. 12(b)(6) to dismiss the complaint for failure to state a claim for relief and Fed. R. Civ. P. 12(c) for judgment on the pleadings.

For the reasons set forth below, the Court converts defendants' motion to dismiss to a motion for summary judgment, and grants summary judgment in favor of the defendants with respect to Parada's ADA claims. Although the Court denies the defendants' motion for summary judgment with respect to Parada's FLSA claim, the Court declines to exercise supplemental jurisdiction over Parada's state law disability discrimination claims and denies leave to file a second amended complaint because amendment would be futile.


A. Parada's Employment Discrimination and Retaliation Claims

In April 2007, Parada slipped and fell on an icy sidewalk, (Pl.'s Mem. in Opposition to Motion to Dismiss III at 107),*fn1 which "caused [her] to suffer a back injury" and rendered her "unable to sit for lengthy periods of time," (Am. Compl. Part II.E ¶ 1).*fn2 At the time, Parada worked at Banco Industrial de Venezuela ("BIV") as a "letter credit specialist," (id.), and, after the fall, she continued to work "with severe pain/inflammation on the neck and lower back, and with strong left ear pulsation," (Pl.'s Opp. III at 9). To alleviate her pain, Parada "used ice wrapped in a paper towel and worked standing [at] the computer" because she was unable to sit "for long periods of time." (Id.)

Six months after her fall, Parada asked BIV, for the first time, to accommodate her back injury, (id.), to request an ergonomic chair, (id.), and "to take breaks or stand for part of the day," (Am. Compl. Part II.E ¶ 1). Despite those repeated requests, Parada alleges that BIV and her supervisors, Oscar Recinos and Alexandra Bermeo, ignored her and failed to accommodate her disability. (Id.; Pl.'s Opp. III at 7-9.)

On November 9, 2007, Parada told Betances, a banking practices compliance officer at BIV, (Pl.'s Mem. in Opposition to Motion to Dismiss V at 6), that "she was going to have to take leave because of the severe pain," (Pl.'s Opp. III at 11). Parada stopped working after that date. (Ex. D to Am. Compl.) During November, Parada saw several doctors to assess her back condition, (Ex. 9 to Pl.'s Opp. V), and she was diagnosed with "slipped discs in neck and lumbar spine" and was referred to a doctor for "spine surgery evaluation." (Id.) On November 27, Dr. Daniel Blum requested that BIV "kindly try to accommodate working conditions to prevent neck and lower back pain, possibly with lumbar support chair." (Id.)

At the end of the November 2007, Parada sent emails to Recinos and Fernandez to advise them of "[the] result on [her] MRI reports," and of her referral "to [] an Orthopedic Doctor." (Pl.'s Opp. V at 30.) Parada provided further documentation related to her November medical appointments, and informed BIV that she would be in contact after her "evaluation [by] the Spinal [doctor] on December 3, 2007." (Id. at 28.) BIV, however, considered Parada's absence "unexcused," (Pl.'s Opp. III at 117), because the documentation that Parada provided was not sufficient to fulfill company policy, which requires a health care provider to certify that a condition prohibits the employee from working, (id. at 115). BIV wrote that if Parada were unable to work "because of a medical condition," she may be eligible for short term disability. (Id.) Parada applied and received short term disability payments for the period between November 11 and February 11, 2008. (Pl.'s Mem. in Opposition to Motion to Dismiss IV at 4.)

While Parada received short term disability, she remained in contact with BIV stating "that I am unable to go to work, due to my unsatisfactory health condition." (Pl.'s Opp. III at 117.) Throughout early 2008, she would periodically supply BIV with evaluations from "M.D. Rehabilitation," (id. at 93-94, 105-106, 114), which stated that she was "totally disabled," stated certain restrictions on Parada's activity, including "no heavy lifting, pushing or pulling, no prolonged sitting," but did not indicate when or if Parada could return to work, (id. at 106). BIV responded to these submissions with reprimands because Parada failed to communicate "about the status of [her] situation and the date you will be returning to work." (Pl.'s Opp. III at 90, 111, 115, 117.)

Although Parada did receive short term disability payments through February 11, 2008, her application for long term disability benefits was denied because BIV's insurance company "determined that Ms. Parada does not meet the definition of disability in [the company's] policy." (Ex. 9 to Pl.'s Opp. V.) After the denial, BIV wrote Parada that she "should have notified us of [her] return to work" since her "long term disability was denied." (Pl.'s Opp. III at 90.) Parada did not return to work, and on May 1, 2008, BIV considered Parada "to have abandoned [her] job" because she had not contacted BIV and had failed to provide "documentation regarding [her] continued absence from work." (Id. at 85.)

B. Parada's FLSA Claim

Parada alleges that while she was employed at BIV she was entitled to overtime pay because she regularly worked more than forty hours a week, "normally working five days a week from 9:00 a.m. to 7:00 p.m. with one hour for lunch." (Am. Compl. Part II.E ¶ 2.) She claims that BIV did not pay her overtime wages in violation of the FLSA. (Am. Compl. Part IV. ¶ 4.)

Prior to instituting this action, Parada filed her FLSA claim with the Department of Labor (the "DOL"). (Id.) After investigation, the DOL found that BIV had in fact violated the FLSA by not paying Parada overtime and that BIV owed Parada 1,304.93 in back wages. (Ex. D to Pl.'s Mem. in Opposition to Motion to Dismiss I at 17.) On October 5, 2009, BIV wrote a check to the DOL for $1,304.93 for the "full amount" of the back wages. (Ex. C. to Pl.'s Opp. I at 14; Ex. D to Pl.'s Opp. I at 17.)

On November 13, 2009, the DOL sent Parada a WH-60 form, which requests Parada's social security number and address, to forward her the back wages as paid by BIV. (Ex. A to Pl.'s Opp. I at 7-8.) Parada did not sign or return the WH-60 form, (Pl.'s Opp. I at 3), and, instead, she sent a letter to the DOL requesting that the DOL return the check to BIV, (Ex. A to Pl.'s Opp. I at 5-6).

C. Procedural History

After Parada was terminated, she filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), (Ex. A to Am. Compl.), ultimately receiving a right to sue letter from the EEOC, (Ex. C to Am. Compl.). She then filed a complaint with this Court. Parada subsequently amended her complaint to allege claims of disability discrimination, retaliation, and FLSA violations. Defendants BIV, Fernandez, Betances, and Valerdi subsequently filed a motion to dismiss and defendant Bermeo filed a separate motion, which Recinos has joined. Because the arguments raised in both motions to dismiss are duplicative and apply to all defendants, the Court will consider both motions to dismiss together.*fn3

Defendants supported both motions to dismiss with papers outside the pleadings, and served plaintiff with "Notice to a Pro Se Litigant who Opposes a Rule 12 Motion Supported by Matters Outside the Pleadings" warning Parada that the Court "may treat this motion as a motion for summary judgment." (Notice to Pro Se Litigant, May 14, 2010, September 20, 2010.) In response, Parada filed five separate opposition memoranda and appended several hundred pages of documentation. Accordingly, the Court converts defendants' Rule 12(b)(6) ...

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