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Joan E. Evans v. Excellus Health Plan

August 6, 2012




On or about September 16, 2011, Plaintiff filed a Complaint with the Supreme Court of the State of New York, County of Oneida. See generally Dkt. No. 1, Ex. A ("Complaint"). Plaintiff raised several causes of action related to the termination of Plaintiff's employment with Defendant Excellus Health Plan, Inc. d/b/a Excellus Blue Cross BlueShield ("Excellus") including: (1) discharge in violation of public policy/breach of implied contract; (2) age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634; (3) age discrimination in violation of New York State Human Rights Law; (4) retaliatory discharge in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12203; (5) retaliatory discharge in violation of New York State Human Rights Law; and (6) prima facie tort. Id. ¶¶ 11-47. On October 19, 2011, Defendants removed the case to the Court on the grounds that the Court has original jurisdiction over Plaintiff's claims under the ADA and ADEA. Dkt. No. 1 ("Notice of Removal") ¶¶ 1, 7-9.

Presently before the Court is Defendants' October 26, 2011 Motion to dismiss Plaintiff's Complaint in its entirety. Dkt. No. 3 ("Motion"). On November 18, 2011, Plaintiff filed an Amended Complaint, in which Plaintiff added a cause of action under the Employment Retirement Income Security Act ("ERISA"). Dkt. No. 9 ("Amended Complaint") ¶ 1. Then, on December 1, 2011, Plaintiff filed a Response in opposition to Defendants' Motion to dismiss the original Complaint. Dkt. No. 12 ("Response"). As a result, on December 9, 2011, Defendants filed a Memorandum of law that simultaneously served as an Answer to Plaintiff's Amended Complaint and a Reply to Plaintiff's Response to Defendants' Motion to dismiss. Dkt. No. 19 ("Reply"). In Defendants' Reply, Defendants declined to proceed with seeking dismissal of Plaintiff's claims under New York Human Rights Law. Id. at 1.

For the reasons that follow, the Court denies Defendants' Motion with respect to Plaintiff's claims under the ADA and ADEA and grants Defendants' Motion with respect to Plaintiff's causes of action under ERISA, for prima facie tort, wrongful discharge in violation of public policy, and breach of implied contract.


In or around September 2003, Plaintiff was employed by Excellus as a Customer Service Representative. Dkt. No. 20-1 ("Intake Questionnaire") at 1. Plaintiff had previously been employed by Excellus between 1978 and 2002. See Am. Compl. ¶¶ 3, 20. At all times relevant to the instant proceeding, Plaintiff worked in Excellus's Utica, NY office and was supervised by Helen Roser ("Defendant Roser") and/or Lynn Marolf ("Defendant Marolf"). Id. ¶¶ 3, 5-6.

In or around October or November 2009, Plaintiff alerted Christopher Booth ("Defendant Booth"), the Vice President of Excellus, and others that Excellus was engaged in an "unlawful practice" of charging "Medicare retirees a penalty." Id. ¶¶ 7, 12. Plaintiff argues that Plaintiff had a "fiduciary duty" to address Excellus's errant billing. Id. ¶ 15. As a result of Plaintiff's report, Excellus announced it "would be liable for the financial penalties initially charged against the Medicare retirees." Id. ¶ 13. Plaintiff was terminated approximately one month later, on November 18, 2009; as a result, Plaintiff believes her termination was retaliatory. Id. ¶¶ 14, 16.

Additionally, in or around 2009, Plaintiff mentioned to Defendant Roser that she had "taken offense" to a comment Plaintiff overheard Defendant Roser make in November, 2003, in which Defendant Roser allegedly referred to a deaf employee as a "hearing impaired bitch." Dkt No. 3-1, Ex. A ("Charge of Discrimination"). Plaintiff also "spoke up" about Defendant Roser's mistreatment and firing of other employees. Id. Plaintiff had, at all times relevant to the proceedings, satisfactorily performed the duties of her position. Am. Compl. ¶ 21. However, in or around October, 2009, Plaintiff was "written up" for allegedly "handling calls inappropriately." Charge of Discrimination. Plaintiff was then terminated for "insubordination," id., and "misconduct" for having allegedly made "false accusations." Intake Questionnaire at 2.*fn1 Therefore, Plaintiff believes that Plaintiff's termination was in retaliation for reporting disability discrimination. Am. Compl. ¶ 35.

Furthermore, at all times relevant to the instant proceeding, Plaintiff was over forty years of age. Id. ¶ 19. When Plaintiff was terminated on November 18, 2009, Plaintiff was the "oldest of the [Customer Service Representative]s in [her] department." Charge of Discrimination. Plaintiff alleges that Defendant Roser frequently made comments about Plaintiff's hearing and told employees that "just because you have a lot of years on the job doesn't mean your job is secure." Am. Compl. ¶ 26. Additionally, Plaintiff asserts that, during Plaintiff's employment, Plaintiff witnessed Defendant Roser remove "many employees who were over 40 years of age from her department." Id. ¶ 24. And, Plaintiff believes that, in spite of Plaintiff's performance, Defendants Roser and Marolf failed to grant Plaintiff pay raises that were afforded to younger employees and overly scrutinized Plaintiff's performance. Id. ¶ 25. As a result, Plaintiff believes that her termination was based on Plaintiff's age. Id. ¶ 27.

On September 14, 2010, Plaintiff filed an Intake Questionnaire with the Equal Employment Opportunity Commission ("EEOC"). See generally Intake Questionnaire. Plaintiff claimed that she had been subject to age and disability-related employment discrimination when Defendant Roser falsely terminated her for misconduct. Id. at 2. Plaintiff also affirmatively checked a box indicating Plaintiff wanted to "file a charge of discrimination" and authorizing the EEOC to investigate the claimed discrimination. Id. at 4. On October 14, 2010, the EEOC Buffalo Office provided Plaintiff with a summary of Plaintiff's claims under the ADEA and ADA. Dkt. No. 13-1, Ex. B ("Charge Notice"). Then, on April 27, 2011, the EEOC closed its investigation and notified Plaintiff of Plaintiff's right to bring suit in federal or state court. Dkt. No. 13-1, Ex. D.

As a result of Defendants' alleged discriminatory, retaliatory, and tortious conduct in terminating Plaintiff, Plaintiff claims that she has suffered damages including lost wages and employment benefits, physical and emotional suffering, and humiliation. See generally Am. Compl.


In reviewing a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must "accept all [factual] allegations in the complaint as true and draw all inferences in the light most favorable to" the non-moving party. In re NYSE Specialists Sec. Litig., 503 F.3d 89, 95 (2d Cir. 2007).*fn2 However, the "tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

To survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This plausibility standard "is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility exists "when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.

"Documents that are attached to the complaint or incorporated in it by reference are deemed part of the pleading and may be considered." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (citations omitted). The Court may also consider documents that, although "not incorporated by reference," are "integral to the complaint." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (internal citation omitted). Therefore, the Court may properly consider public documents as well as documents filed with the EEOC, such as Plaintiff's Intake Questionnaire and the Charge Notice. See, e.g., Holowecki v. Fed. Express Corp., 440 F.3d 558, 565-66 (2d Cir. 2006) (finding it proper for the court to "consider the plaintiffs' relevant filings with the EEOC" and documents relied upon to satisfy statutory time requirements), aff'd, 552 U.S. 389 (2008); Davis v. Columbia Univ., No. 09 CV 9581, 2010 WL 2143665, at *2 (S.D.N.Y. May 26, 2010) (considering plaintiff's termination letter, EEOC Charge of Discrimination, and Right to Sue letter).


A. Plaintiff's ADA and ADEA claims are not time-barred

Defendants seek dismissal of Plaintiff's third cause of action for age discrimination under the ADEA, and fifth cause of action, for retaliatory discharge under the ADA on the grounds that both claims are time-barred. Defs.' Mem. at 2. Under both Acts, a charge must be filed with the EEOC within one hundred and eighty days after the alleged unlawful employment practice. See 42 U.S.C. § 12117(a); 42 U.S.C. § 2000e-5(e)(1); 29 U.S.C. § 626(d)(1)(B). But, where a claim has already been filed with a State or local agency with the authority to grant relief from the alleged unlawful employment practice, a charge must be filed with the EEOC within three hundred days after the alleged unlawful employment practice occurred. See id.*fn3 This statutory requirement is "not a jurisdictional prerequisite to suit in federal court" but rather is analagous to a "statute of limitations," subject to "waiver, estoppel, and equitable tolling." Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982).

Defendants argue that Plaintiff's charge was untimely because it was filed on November 24, 2010, 371 days following Plaintiff's November 18, 2009 termination. Defs.' Mem. at 3. November 24, 2010 is, indeed, the filing date of Plaintiff's EEOC Form 5. See Charge of Discrimination. However, EEOC Form 5 is merely a summary of the claims Plaintiff had already made to the EEOC that was sent to the Plaintiff for Plaintiff's review and authorization of the EEOC's investigation. Id. Moreover, the EEOC mailed Plaintiff the Form 5 for review on October 14, 2010. Charge Notice. In the accompanying letter, the EEOC stated that Plaintiff's previously filed Intake Questionnaire "constitutes a charge of employment discrimination" and that "[f]or purposes of meeting the deadline for filing a charge, the date of ...

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