The opinion of the court was delivered by: Kenneth M. Karas, District Judge:
Roger Smith ("Plaintiff"), a former correction officer for the Westchester County Department of Correction, brings this action against Westchester County ("Westchester") and Westchester County Department of Correction ("DOC"), as well as Joseph K. Spano ("Spano") in his official capacity as DOC Commissioner and former Deputy Commissioner, Rocco Pozzi ("Pozzi") in his capacity as former Commissioner, Clyde S. Isler ("Isler") in his capacity as Deputy Commissioner, Fred Lantz ("Lantz") in his capacity as Warden, Charles Turner ("Turner") in his capacity as Deputy Warden, and Josephine M. Gibson ("Gibson") in her capacity as Assistant Warden, (collectively, the "Individual Defendants"). All Individual Defendants also are sued in their individual capacities. Plaintiff alleges violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., and Title VII of the Civil Rights Act of 1964("Title VII"), 42 U.S.C. § 2000e et seq. Defendants have moved to dismiss Plaintiff's complaint, pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6), on the grounds that (1) Plaintiff failed to commence the action within the applicable statute of limitations, (2) Plaintiff failed to state a claim under the FMLA, and (3) Plaintiff failed to serve the Individual Defendants in accordance with Federal Rules of Civil Procedure 4(e) and 4(m).*fn1
For the reasons stated herein, Defendants' motion is granted in part and denied in part.
For purposes of this Motion, the Court accepts as true all facts alleged by Plaintiff in his Second Amended Complaint.
1. Plaintiff's FMLA Requests
Plaintiff was employed as a correction officer by Defendant DOC until he was terminated on April 24, 2009. (Second Am. Compl. ("SAC") ¶¶ 2-3.) Plaintiff first took intermittent FMLA leave to take care of his seriously ill mother on February 11, 2005. (Decl. of Irma W. Cosgriff ("Cosgriff Decl.") Ex. C, at 000050.)*fn2 On June 27, 2005, Plaintiff re-applied for FMLA leave. (SAC ¶ 6.) This request was denied on July 12, 2005. (Id. ¶ 7.) In August 2005, Defendant DOC reversed the denial and granted Plaintiff FMLA leave through October 12, 2005. (Id. ¶ 8; Cosgriff Decl. Ex. C, at 000050-000051.) At this time, Plaintiff was told to recertify the leave every three months (SAC ¶ 8), and was informed that if he "appl[ied] for FMLA leave in February 2006 for the same medical condition . . . and [he] d[id] not have the required 1250 hours [he] w[ould] be denied FMLA," (Cosgriff Decl. Ex. C, at 000050). On October 12, 2005, Plaintiff submitted a medical certification to support extending his FMLA leave; Defendant DOC allegedly did not respond. (SAC ¶ 9.) Plaintiff continued to provide such certification every three months but the submissions purportedly were not acknowledged by Defendant DOC. (Id. ¶ 19.)
On March 20, 2006, Defendant DOC denied a continuation of Plaintiff's FMLA leave because Plaintiff had not worked the required 1,250 hours in 2005, a statement which Plaintiff asserts was "knowingly false." (Id. ¶ 22.) The denial purported to include time/leave balances demonstrating that Plaintiff did not qualify; however, the attachment appears to contain a list of Plaintiff's leave dates between January 1 and February 10, 2006, instead of the total number of hours Plaintiff worked in the twelve months preceding his application for leave. (Cosgriff Decl. Ex. E.) Plaintiff asserts that he was eligible for FMLA benefits because he had been employed for the previous twelve months and had provided 1,250 hours of service during that twelve-month period; however, it is not clear to what twelve-month period Plaintiff is referring. (SAC¶ 72.) On October 24, 2006, Defendant Isler sent Plaintiff a letter denying an extension of Plaintiff's FMLA leave, which, according to Plaintiff, was "four and one-half months late." (Id. ¶ 38.) Plaintiff claims that although he "had duly certified that his leave should continue because he was still needed for his mother's care" (id. ¶ 39), Defendant DOC recorded each day that Plaintiff missed as sick time instead of FMLA leave time, despite Plaintiff's alleged entitlement to continued FMLA leave time, (id. ¶ 40).*fn3 Plaintiff took intermittent FMLA leave to take care of his mother until she died on October 24, 2006. (Id. ¶ 38.)*fn4
2. Plaintiff's Attendance Review
On November 8, 2005, Plaintiff was "verbally counseled" by Captain Glenn Solitor for Plaintiff's absence from work on days that Plaintiff asserts were covered by his FMLA leave; Plaintiff states that Solitor said he was "ordered to do" so. (Id. ¶¶ 12-13.) Subsequently, Plaintiff was ordered to appear before Defendant Turner for an attendance review hearing on March 8, 2006. (Id. ¶ 20.) According to Plaintiff, after a union representative informed Defendant Turner that Plaintiff's absences were covered by his FMLA leave, Defendant Turner said that he would correct the error and no attendance review would take place. (Id. ¶ 21.)
However, Plaintiff received another Attendance Review Status Memorandum on April 10, 2006. (Id. ¶ 24.) On April 24, 2006, Plaintiff was placed under attendance review, which Plaintiff claims that Defendant Turner admitted was incorrect and promised to remedy, but did not. (Id. ¶ 25.) Subsequently, Defendant Gibson took over the attendance review, imposed disciplinary action, and barred Plaintiff from receiving overtime. (Id. ¶ 26.) The attendance review was based on Plaintiff's absence from work on dates that allegedly were "explicitly included in Plaintiff's FMLA leave," when each date purportedly had been "approved by Defendant Westchester County, its agents and employees as FMLA dates." (Id. ¶¶ 34-35; Cosgriff Decl. Ex. C, at 000006.) On June 23, 2006, Plaintiff's attendance review was extended to August 26, 2006, and he continued to be subject to the review until mid-September 2006. (SAC ¶¶ 36-37.)
3. Plaintiff's Allegations of Other Improper FMLA Conduct
When Plaintiff would call in his absence from work, an immediate supervisor who is not identified by Plaintiff allegedly "harass[ed] Plaintiff by slamming down the telephone each time" and "intentionally and incorrectly record[ed] Plaintiff's absences as sick days rather than FMLA days." (Id. ¶ 11.)*fn5 In early 2006, Plaintiff also discovered that his FMLA leave dates purportedly were "illegally" being recorded as sick days. (Id. ¶ 17.) At the end of 2005, Plaintiff carried over 264.10 hours of sick time, 140 hours of vacation time, .56 hours of holiday leave, and 35 hours of personal leave; credited hours which Plaintiff claims were removed from his record in 2006. (Id. ¶ 10.) Additionally, according to Plaintiff, Defendant DOC "incorrectly calculated Plaintiff's accrued sick time and deprived him of those earned benefits," though Plaintiff is not clear about the time frame of the error. (Id. ¶ 18.)
Upon returning to work from his FMLA leave, Plaintiff allegedly was sent home for failing to provide medical clearance to return to work, despite the fact that he himself was not sick. (Id. ¶ 41.) According to Plaintiff, Defendant Gibson agreed that medical clearance was unnecessary because the leave was for the care of a relative; however, Defendant Turner allegedly ordered that Plaintiff be sent home until he obtained the clearance. (Id.) When questioned by Defendant Gibson, Plaintiff claims that Defendant Turner "fraudulently and knowingly denied" that he had "blocked" Plaintiff's return to work in such a manner, but another employee, Captain Curry, allegedly confirmed that Defendant Turner had ordered that Plaintiff be sent home. (Id. ¶¶ 41-42.)*fn6
4. Plaintiff's Protests Regarding his FMLA Treatment
After the March 2006 denial of Plaintiff's FMLA request, Plaintiff submitted a complaint to the United States Department of Labor ("DOL"). (Id. ¶ 23.)*fn7 Plaintiff alleges that the April 2006 attendance review hearing was convened after Plaintiff complained to the DOL, "in violation of and interference with Plaintiff's FMLA rights." (Id.) Plaintiff also appealed the attendance review to Defendant Spano on April 30, 2006. (Id. ¶ 27.) In his appeal, Plaintiff "included the FMLA Compliance guide," and informed Defendant Spano that Defendant DOC was violating the FMLA and interfering with Plaintiff's FMLA rights. (Id.) Defendant DOC denied Plaintiff's appeal on May 9, 2006, for failure to submit the appeal within the required three days. (Id. ¶ 28; Cosgriff Decl. Ex. C, at 000007.) Additionally, on May 24, 2006, Plaintiff filed a grievance under the collective bargaining agreement seeking to overturn the attendance review and alleging FMLA violations. (SAC ¶ 29; Cosgriff Decl. Ex. C, at 000104.) Defendants allegedly did not respond. (SAC ¶ 30.) In May 2006, Plaintiff also sent a letter to Defendant Spano stating that Defendant Spano and Defendant DOC "were violating the federal FMLA statute and were interfering with Plaintiff's rights under the FMLA," and provided Defendant Spano with Defendant DOC's FMLA policy. (Id. ¶¶ 31-33; Cosgriff Decl. Ex. C, at 000106.)
5. Plaintiff's Other Allegations of Harassment and Improper Acts
Plaintiff claims that beginning in November 2005, he was "harassed by his supervisors, taken off his post, and ordered to perform duties outside his job description, all in violation of the collective bargaining agreement," while no other correction officers were removed from their posts. (SAC ¶¶ 14-15.) Plaintiff filed a grievance protesting this harassment on August 18, 2006. (Id. ¶ 16; Cosgriff Decl. Ex. C, at 000108.)
In addition, Defendants allegedly withheld pay owed to Plaintiff from April 26, 2006, through May 5, 2007. (SAC¶ 45.) In November 2006, Defendant DOC purportedly admitted it improperly had withheld thousands of dollars of Plaintiff's salary, and on May 5, 2007, deposited $25,000 into Plaintiff's checking account as partial payment of back wages; however, substantial compensation supposedly remained owed to Plaintiff. (Id. ¶¶ 45-46.) According to Plaintiff, that deposit "constituted an admission by Defendants that they had deprived Plaintiff of a substantial and significant portion of his wages over a two year period." (Id. ¶ 48.)
Plaintiff also sought help from an Employee Assistance Program ("EAP") because of the "great emotional distress" caused by the FMLA violations, his attendance reviews, his loss of overtime, and the non-payment of salary that was owed to him. (Id. ¶43.) Defendant Turner allegedly "interfered with Plaintiff's participation in the EAP, tried to force him to stop attending, and harassed" him for attending. (Id. ¶ 44.)
6. Plaintiff's Termination
Plaintiff claims that on December 11, 2006, Defendants filed false charges, improperly imposed discipline, and engaged in malicious prosecution against Plaintiff, which resulted on November 30, 2007, in a "coerced and fraudulently induced settlement agreement . . . that contributed to Plaintiff's loss of benefits, compensation, and employment." (Id. ¶ 49.)*fn8
According to Plaintiff, these allegedly false charges also caused him to suffer a bleeding ulcer and severe depression. (Id. ¶ 50.) On April 24, 2009, Plaintiff's employment was terminated, and his termination was affirmed by a hearing held pursuant to § 73 of the New York Civil Service Law on May 28, 2009. (Id. ¶ 3.) Plaintiff has alleged that the termination was the "culmination of a pattern and practice of continuing violation of Plaintiff's rights" under the FMLA that occurred from June 25, 2005, through May 28, 2009. (Id. ¶¶ 4, 77.)
Plaintiff, represented at the time by counsel, commenced his action in state court on April 1, 2009, and filed an Amended Complaint on May 28, 2009. At these points, the Individual Defendants were not served. After consulting with Plaintiff's counsel, Defendants filed a Notice of Removal on June 25, 2009. (Dkt. No. 1.) Plaintiff initially contested the removal (Dkt. Nos. 2, 4), but on September 10, 2009, consented to the case proceeding in this Court, (Dkt. No. 5). On November 5, 2009, the Court issued an Order relieving Plaintiff's counsel, and allowing Plaintiff to proceed pro se.*fn9 (Dkt. No. 10.) Pursuant to permission from the Court, on October 30, 2009, Plaintiff filed a Second Amended Complaint that had been prepared by his former counsel. (Dkt. Nos. 7, 11.) On the same date, the Clerk of Court docketed a July 24, 2009 letter from Plaintiff with attached exhibits. (Dkt. No. 8.)
On December 21, 2009, the Court was informed that the Individual Defendants had not been served (Dkt. No. 15), and as of January 26, 2010, Defendants Pozzi and Spano still had not been served, (Dkt. No. 16). After Plaintiff represented that all Defendants had been served by Plaintiff's former counsel, the Court directed Plaintiff to re-serve Defendants Pozzi and Spano.(Dkt. No. 17.) On April 14, 2010, Defendants filed the instant motion to dismiss all of Plaintiff's claims in the Second Amended Complaint. (Dkt. No. 23.) Plaintiff continues to proceed pro se, but was assisted by an attorney in preparing his opposition papers. (Dkt. No. 30.) On April 21, 2010, Plaintiff ...