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Erin A. Kearney v. Kessler Family LLC and Friendly Ice Cream Corporation

July 11, 2011

ERIN A. KEARNEY, PLAINTIFF,
v.
KESSLER FAMILY LLC AND FRIENDLY ICE CREAM CORPORATION, DEFENDANTS.



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

DECISION and ORDER

INTRODUCTION

Plaintiff, Erin A. Kearney ("Plaintiff"), brings this action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et. seq., ("Title VII"), The Americans with Disabilities Act, 42 U.S.C. § 12101, et. seq. ("ADA"), and the New York State Human Rights Law, Executive Law § 296 ("NYSHRL") against Defendants Kessler Family LLC and Friendly Ice Cream Corporation, alleging discrimination based on sex, disability, and retaliation.

Defendant Friendly Ice Cream Corporation ("Friendly's") moves to dismiss Plaintiff's complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure on the grounds that: Plaintiff failed to file an administrative charge of discrimination against Friendly's or obtain a right-to-sue letter against Friendly's; Plaintiff failed to sufficiently plead that Friendly's was her employer under Title VII; and with respect to Plaintiff's state law claims against Friendly's, Plaintiff failed to sufficiently plead that Friendly's was her employer under the NYSHRL.*fn1

Plaintiff opposes Defendant's motion, and cross-moves to amend her complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, asserting four new allegations against Friendly's.

For the reasons set forth below, this Court grants Defendant Friendly's motion to dismiss and denies Plaintiff's motion to amend.

BACKGROUND

Plaintiff began working for Kessler Family LLC ("Kessler") in October 2007 when she was hired as a waitress for Kessler's Friendly's restaurant in Fairport, New York. (Dkt. No. 1 at ¶¶ 26-7). Kessler Family LLC is a Friendly's franchisee that independently operates numerous Friendly's restaurants throughout New York State. (Id. at ¶ 8). Friendly Ice Cream Corporation is the owner of the Friendly's trademark and is the franchisor of all Friendly's restaurants throughout New York. (Id. at 7).

On January 12, 2011, Plaintiff filed the instant complaint against Defendants Kessler Family LLC ("Kessler"), and Friendly Ice Cream Corporation, pursuant to Title VII, the ADA, and the NYSHRL, alleging discrimination based on sex, disability, and retaliation.

Prior to filing this action, Plaintiff filed an administrative charge of discrimination with the Equal Employment Opportunity Commission ("EEOC").*fn2 (See id.). Plaintiff submitted an EEOC intake questionnaire on January 20, 2010, and filed a discrimination charge with the EEOC against Kessler Family LLC on April 9, 2010. (See Id., Exh. A; Exh. B). On her intake questionnaire, Plaintiff noted her workplace organization as "Friendly's Restaurant (Fairport, New York)," and also listed "Kessler Family LLC" and "Kessler Group, Inc." alongside. (See id., Exh. A).

On October 14, 2010, the EEOC dismissed Plaintiff's discrimination charge and issued a Dismissal and Notice of Rights. (Id.; Exh. C). The EEOC also sent Plaintiff a letter explaining the finding that, from the information Plaintiff provided, the Commission could not conclude that the Respondent in the action violated a federal law. Id. Both the dismissal and letter named only "Kessler Family LLC" as the respondent. Id. After receiving notice of her right to sue, Plaintiff filed the present action on January 12, 2011, naming both Kessler Family LLC and Friendly Ice Cream Corporation as defendants. (Dkt. No. 1 ¶¶ 1-13).

DISCUSSION

I. Friendly's Motion to Dismiss

A. Standard of Review

When considering a motion to dismiss pursuant to Rule 12(b)(6), a court must "accept...all factual allegations in the complaint and draw...all reasonable inferences in the plaintiff's favor." See Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (internal quotation marks omitted). To withstand dismissal, a plaintiff must set forth "enough facts to state a claim to relief that is plausible on its face." See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974 (2007). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." See id. at 1965 (internal quotation marks omitted). Thus, "at a bare minimum, the operative standard requires the 'plaintiff [to] provide the grounds upon which his claim rests through factual allegations sufficient to raise a right to relief above the speculative level.'" See Goldstein v. Pataki, 516 F.3d 50, 56-57 (2d Cir. 2008) (quoting Twombly, 127 S.Ct. at 1974).

B. This Court Grants Friendly's' Motion to Dismiss

Friendly's moves to dismiss Plaintiff's claims on the grounds that she failed to file an EEOC charge and obtain a right-to-sue letter against Friendly's. (Dkt. No. 5 at 4). In support of this argument, Friendly's contends that: (1) Plaintiff failed to identify Friendly's in her EEOC charge, which bars her Title VII and ADA claims against it; (2) Friendly's does not share an identity of interest with Kessler Family LLC such that any notice of claim against Kessler would constitute notice against Friendly's; and (3) Friendly's is not the Plaintiff's employer, and therefore may not be liable to her for claims of employment discrimination.

For the reasons set forth below, I find that Plaintiff's failure to file an administrative charge of discrimination against Friendly's bars her from bringing the instant action against Friendly's. I further find that Plaintiff has failed to adequately allege that Friendly's is her employer, and therefore, I grant Friendly's' motion to dismiss Plaintiff's claims of employment discrimination against it.

It is uncontested that Plaintiff's EEOC charge and right-tosue letter identified only "Kessler Family LLC" as respondent. (Dkt. No. 1, Exh. A; Exh. B; Exh. C). As noted above, it is well established that, prior to bringing a claim of employment discrimination in federal court, a plaintiff must exhaust her administrative remedies by first filing an administrative complaint with the EEOC, or with an authorized state agency. See 42 U.S.C. § 2000e-5(f)(1); 42 U.S.C. § 12101; New York Executive Law § 296; see also Dozier v. Corning Cmty. Coll., 10-CV-6423T, 2010 U.S. Dist. LEXIS 113242, *1-2 (W.D.N.Y. Oct. 25, 2010). Thus, "a plaintiff's Title VII claims against a defendant who is not named as a respondent in an EEOC charge or the right-to-sue ...


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