The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
Pending before the Court are two motions, one by pro se plaintiff
Mahmoud Mahran, and one by defendant Benderson Development Company,
LLC ("Benderson"). Benderson has made a motion to dismiss plaintiff's
complaint under Rules 12(b)(1), 12(b)(5), and 12(b)(6) of the Federal
Rules of Civil Procedure ("FRCP"). Benderson believes that plaintiff
failed to exhaust administrative remedies by never filing a
discrimination complaint with either the Equal Employment Opportunity
Commission ("EEOC") or the New York State Division of Human Rights
("NYSDHR"); that plaintiff did not name it properly*fn2
and thus did not serve process correctly; and that plaintiff has not
raised a cognizable claim in his allegations of a violation of
confidential medical information. Meanwhile, plaintiff has made a
motion for leave to file an amended complaint to allow him to add a
claim that Benderson denied him participation in a 401(k) plan, in
violation of the Employee Retirement Income Security Act of 1974
("ERISA"), 29 U.S.C. §§ 1001--1461.
The Court has deemed the motions submitted on papers pursuant to FRCP 78(b). For the reasons below, the Court grants Benderson's motion in part and denies it in part. The Court also grants plaintiff's motion.
This case concerns allegations that plaintiff resigned from his employment with Benderson because Benderson discriminated against him on the bases of religion and race, refused to accommodate his disability, and disclosed his confidential medical information to co-workers. The complaint does not contain a lot of factual detail but does set forth the following facts, which the Court will accept at face value for purposes of Benderson's motion. Plaintiff worked at Benderson's Buffalo office from January 3, 2006 to September 4, 2007. Plaintiff does not describe what his job at Benderson was, though it may have related to information technology since he described Benderson's Chief Information Officer ("CIO")*fn3 as his "direct boss." At unspecified times during plaintiff's tenure at Benderson, the CIO made unspecified "religious and racial comments" to him. Plaintiff complained about the presumably derogatory comments to human resource officials, but those officials took no action. This harassment may or may not have had anything to do with Benderson's decision to deny plaintiff participation in a 401(k) program, even though plaintiff qualified for participation upon completing one year of employment.
Meanwhile, plaintiff applied for short-term disability leave at some point during his tenure. The complaint does not set forth why plaintiff sought disability leave or how long the leave lasted, but plaintiff's reference to returning to work on July 14, 2007 implies that Benderson granted the leave. Upon applying for disability leave, however, the CIO harassed plaintiff in an unspecified way. Two adverse events occurred when plaintiff returned from disability leave. First, plaintiff's co-workers harassed him about the medical basis for his disability leave. Since plaintiff had not told any co-workers about his health, he realized that "the defendant's representative"*fn4 disclosed his medical information to his co-workers. Second, Benderson denied plaintiff's request for a "light work schedule" to accommodate his disability. The CIO told plaintiff that he would be terminated if he could not "perform well," which presumably included working without whatever disability accommodations plaintiff sought. Plaintiff suffered "extreme mental and emotional anguish" as a result of all of Benderson's harassing conduct, which plaintiff described as creating a hostile work environment. The hostile work environment ultimately caused plaintiff to resign on September 4, 2007.
How plaintiff sought redress after his resignation is important because it affects some of his claims. Plaintiff never filed any kind of complaint with either the EEOC or the NYSDHR. Plaintiff waited almost exactly three years after his resignation to bring suit on August 30, 2010, serving the complaint on Benderson's corporate counsel at Benderson's Buffalo office. (See Dkt. No. 2.) When plaintiff commenced this action, he barely delineated any specific claims or theories of liability. Instead, plaintiff asserted in the fourth paragraph of the complaint that he was bringing the action under five different sources of statutory authority: the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. §§ 2601--2654; the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101--12213; Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e to 2000e-17; the Fourteenth Amendment; and the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), 110 Stat. 1936 (codified as amended in scattered sections of U.S. Code). Plaintiff then proceeded to plead the facts summarized above.
In lieu of answering, Benderson filed the pending motion to dismiss. Benderson advances several arguments in favor of dismissing plaintiff's claims. According to Benderson, plaintiff's Title VII and ADA claims should be dismissed because he never filed any charge of discrimination, let alone a timely one, with the EEOC or the NYSDHR. Plaintiff's FMLA claim should be dismissed because plaintiff filed it past the standard two-year limitations period and because he has not alleged the willfulness necessary to trigger the special three-year limitations period. Plaintiff's claim under the Fourteenth Amendment should be dismissed because he has not attributed any state action to Benderson. Plaintiff's claim of a HIPAA violation should be dismissed because HIPAA has no private right of action. Finally, all of plaintiff's claims should be dismissed, according to Benderson, because he did not name it correctly in the complaint and thus never completed proper service of process on his former employer.
Plaintiff has filed a response to each of Benderson's arguments for dismissal. Plaintiff concedes that he never submitted any filings to the EEOC or the NYSDHR. Nevertheless, plaintiff indicates that his ADA claim includes a claim for a violation of confidentiality of medical records, and that allegations related to confidentiality do not need to be submitted to an administrative agency. Plaintiff defends his FMLA claim by asserting that Benderson's conduct was sufficiently willful to fall under the special three-year limitations period, and not the general two-year limitations period. Plaintiff has withdrawn his claims under the Fourteenth Amendment and HIPAA. Finally, plaintiff asserts that he made a good-faith mistake in how he named Benderson in the complaint, and that his entire case should not be dismissed based on such a mistake.
The day after he responded to the motion to dismiss, plaintiff filed a motion for leave to file an amended complaint. Plaintiff casts his motion as an invocation of his right under FRCP 15(a) to amend his pleading once as a matter of course. The proposed amended complaint adds a few factual details to the narrative set forth in the original complaint. More importantly, the proposed amended complaint would convert the allegation about denied participation in Benderson's 401(k) plan into an explicit claim that denial of participation in the plan violated ERISA. Benderson takes no position on plaintiff's motion to amend but contends that the proposed amended complaint contains many of the same legal defects as the original complaint.
A. FRCP 12 and Pro Se Litigants Generally
Although Benderson has based its motion on more than one section of FRCP 12, the Court generally will proceed through its analysis under the familiar evidentiary standard of FRCP 12(b)(6), "construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (citation omitted). "A document filed pro se is to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations omitted). That said, however, "the tenet that a court must accept as true all of the allegations contained in a complaint is ...