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Julie E. Male v. Tops Markets

June 13, 2011

JULIE E. MALE, PLAINTIFF,
v.
TOPS MARKETS, LLC, DEFENDANT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION and ORDER

INTRODUCTION

This is Plaintiff, Julie E. Male's ("Plaintiff") second attempt to pursue claims based on her employment by the Defendant, Tops Markets, LLC ("Defendant"). Plaintiff's first action ("Male I") was dismissed because her initial complaint was insufficient and therefore, it failed to give Defendant notice pursuant to Rule 8 of the Federal Rules of Civil Procedure. See Affirmation of Mark

A. Moldenhauer, Esq., dated March 8, 2010, ¶3 ("Moldenhauer Aff.")(Docket #30-1). Plaintiff filed an Amended Complaint in Male I, but this Court found that the Amended Complaint was untimely. Id. at ¶6. Plaintiff appealed that decision and commenced this lawsuit ("Male II"), while her appeal in Male I was still pending. Id. ¶¶ 6,7. The Court of Appeals for the Second Circuit subsequently dismissed Plaintiff's appeal in Male I for her repeated failure to comply with the rules of the Court. See Male v. Tops Markets, LLC, 354 Fed. Appx. 514, 2009 WL 4249847, **2 (2d Cir. 2009).

Plaintiff's initial Complaint in this action, Male II, was also dismissed by this Court On September 15, 2008, because Plaintiff's pre-termination claims under the Family and Medical Leave Act, 29 U.S.C. §§ 2601 et seq. ("FMLA"), American's with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA") and the New York Human Rights Law, N.Y. Executive Law §§ 290 et seq. ("NYHRL") were barred by the principals of res judicata, as Plaintiff had previously raised these claims in Male I, which was dismissed with prejudice. See Moldenhauer Aff. ¶12. The Second Circuit upheld this determination, but vacated this Court's dismissal of Plaintiff's claim for post-termination retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), and remanded the case to this Court to determine whether Plaintiff had adequately plead this claim in the first instance and, if not, whether to grant Plaintiff leave to amend. See Male v. Tops Markets, LLC, 2009 WL 4249847 (2d Cir. 2009).

In a Decision and Order dated October 29, 2010, this Court found that Plaintiff had not plausibly stated a claim for post-termination retaliation under Title VII, and afforded Plaintiff the opportunity to amend the Complaint to properly assert her claims for post-termination retaliation. (Docket # 27.) The Court did not specify under what statutory scheme the claims must be plead, rather it left the door open for Plaintiff to plead any plausible claim of post-termination retaliation. Plaintiff filed an Amended Complaint on November 22, 2010 and now asserts claims for post-termination retaliation under the ADA, FMLA and NYHRL.*fn1 Plaintiff specifically claims that Defendant unlawfully retaliated against her after she filed discrimination complaints with the Equal Employment Opportunity Commission ("EEOC") and in this Court, by providing negative references to prospective employers. See Compl.¶¶ 82-100.

Defendant now moves to dismiss the Amended Complaint pursuant to Rules 12(f) and 12(b)(6) of the Federal Rules of Civil Procedure. (Docket ## 28, 29). Defendant contends that Plaintiff exceeded this Court's Order granting her leave to amend the Complaint and therefore, this Court should grant its Motion to Strike the entire Amended Complaint. As explained above, this Court does not find that Plaintiff exceeded this Court's Order granting leave to amend the Complaint. Accordingly, Defendant's Motion to Strike is denied.

Defendant alternatively argues that Plaintiff's Amended Complaint fails to state a plausible claim for post-termination retaliation under the ADA, FMLA or NYHRL and that Plaintiff's claims are untimely. For the reasons set forth below, this Court denies Defendant's motions.

BACKGROUND

Familiarity with the facts of the case and this Court's previous decisions is presumed and only those facts pertinent to this decision are repeated here. The Amended Complaint contains the following, non-conclusory allegations relevant to Plaintiff's post-termination retaliation claims: (1) Plaintiff claims she had certain disabling conditions and that she took FMLA protected leave while employed by the Defendant; (2) Plaintiff filed discrimination complaints with the EEOC in 2006, on August 14, 2008 and in this Court on November 19, 2007 and May 29, 2008; (3) Plaintiff applied for more than 100 jobs, "interviewed well, and was told she would be 'called back,'" but she was not hired; (4) Plaintiff learned that "a call was made regarding 'what kind of employee' she had been, and [would be];" (5) Plaintiff states that the call occurred between the hours of 3 and 6 p.m., on an unspecified date; (6) A "manager or supervisor" of the Defendant told the caller that Plaintiff "was a good employee for the first couple of years," but thereafter "Plaintiff began having 'personal problems' that spilled over into her professional life...[and] Plaintiff 'missed and was late to work a lot because of her personal and medical issues.'" See Compl. at ¶¶ 13-17, 82-100.

DISCUSSION

To survive a Rule 12(b)(6) motion to dismiss, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." See Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). The Court "'must accept as true all allegations in the complaint and draw all reasonable inferences in favor of the non-moving party.'" See Vietnam Ass'n for Victims of Agent Orange v. Dow Chem. Co., 517 F.3d 104, 115 (2d Cir.2008) (quoting Gorman v. Consol. Edison Corp., 488 F.3d 586, 591-92 (2d Cir.2007)). However, the court may disregard a plaintiff's "legal conclusions, deductions or opinions couched as factual allegations." See, e.g., In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir.2007) (citation omitted).

"[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." See Twombly, 550 U.S. at 579. The Court, therefore, does not require "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." See id. at 569. "When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ...


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