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Difillipo v. Special M S Corporation

United States District Court, N.D. New York

March 26, 2014

LINDA M. DIFILLIPO, Plaintiff,
v.
SPECIAL M S CORPORATION; WILLIAM FARLEY; DONALD BIERSTINE, RONALD THOMPSON; NICHOLAS MASCHINO; KEITH DABBS; TERRY WHITE; JOHN DOE(S); and JANE DOE(S), Defendants.

BOSMAN LAW FIRM, L.L.C. A.J. BOSMAN, ESQ., Rome, New York, Attorneys for Plaintiff.

BOND, SCHOENECK & KING, PLLC BRIAN J. BUTLER, ESQ., COLIN LEONARD, ESQ., SUZANNE M. MESSER, ESQ., Syracuse, New York, Attorneys for Defendants.

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTINO, , District Judge.

I. INTRODUCTION

Linda M. DiFillippo ("Plaintiff") commenced this action against Defendants Special M s Corporation ("Special M s"), William Farley, Donald Bierstine, Ronald Thompson, Nicholas Maschino, Keith Dabbs, Terry White, and various, unidentified John and Jane Doe Defendants, asserting a variety of claims arising out of incidents leading up to and including her eventual termination on June 17, 2011. Dkt. No. 5 at 11. Plaintiff's complaint alleges discrimination and r iation under Title VII of the Civil Right Act of 1964 ("Title VII"), as amended, Title I and Title V of the Americans with Disabilities Act ("ADA"), as amended, the Rehabilitation Act ("RA"), the New York State Human Rights Law ("NYHRL"), and the New York State Constitution, Art. I, ยง 11. Dkt. No. 5 at 1-2. Plaintiff seeks compensatory and punitive damages for the injury and harm caused by Defendants, totaling no less than $1, 000, 000, as well as costs, injunctive and declaratory relief. See id. at 1, 14.

Currently pending before the Court is Defendants' motion to dismiss pursuant to Rules 12(b)(2), 12(b)(4), 12(b)(5), 12(b)(6), and 12(c) of the Federal Rules of Civil Procedure. See Dkt. No. 17 at 1. Plaintiff opposes Defendants' motion, and cross moves to amend her complaint. Dkt. No. 21 at 2; Dkt. No. 21-4 at 1.

II. BACKGROUND

Plaintiff is a female who was employed by Defendant Special M s from about 2005 until her termination on June 17, 2011. Dkt. No. 21-3 at 4, 7.[1] Throughout her employment with Defendant Special M s, Plaintiff's work performance was at least no worse than the performance of other employees and free from any misconduct. Id. On or about February 28, 2006, Plaintiff suffered a hand injury. Id. In May of 2006, Plaintiff began working under a restriction and was placed on hand grinding to accommodate her hand injury. Id. Said hand injury rendered Plaintiff disabled within the meaning of the ADA, RA, and NYHRL. Id.

On or about July 2, 2008, Plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC"), charge number XXX-XXXX-XXXXX. Id. at 5. Plaintiff was laid off on or about January 31, 2009. Id. On or about May 28, 2009, Plaintiff filed a lawsuit alleging gender and disability discrimination based on the 2008 charge of discrimination. Id. The lawsuit resulted in Defendants harboring ill will toward Plaintiff and remained pending until on or about September 30, 2011. Id. On or about February 4, 2010, Plaintiff applied for the position of Inspector with the Defendant Special M s. Id. Plaintiff was qualified to hold such position. Id. Plaintiff was denied the position. Id. On or about March 11, 2010 and April 14, 2010, Plaintiff filed additional charges with the EEOC, charge numbers XXX-XXXX-XXXXX and XXX-XXXX-XXXXX.

By EEOC direction, Defendant Special M s rehired Plaintiff and made her an Inspector on or about June 14, 2010. Id. Unlike similarly situated male inspectors employed by Defendant Special M s, Plaintiff was constantly shifted among different areas within her department and constantly reassigned to different tasks. Id. Additionally, unlike Plaintiff, male employees were excused from the most technically complex tasks in that they were not required to work in the Mark-to-Cut area. Id. Further, supervisors and co-workers were told not to answer any questions by Plaintiff and she was to seek out Defendant Maschino instead, a restriction not placed on similarly situated male inspectors. Id. at 5-6.

On February 25, 2011, Defendants Farley, Bierstine, Thompson, and Maschino informed Plaintiff that she had been demoted and removed from her position in the inspection department to the utility department. Id. at 6. Defendants produced a list of errors allegedly committed by Plaintiff. Id. The list of errors was materially different from the list of errors Defendants produced at Plaintiff's arbitration hearing as support for her demotion. Id. At this meeting, Plaintiff then advised these Defendants that she was going to file an EEOC complaint. Id. Upon information and belief, the decision to demote Plaintiff was made by Defendants Farley, Bierstine, Thompson, Maschino and Dabbs. Id. On or about March 7, 2011, Plaintiff filed another charge with the EEOC, charge number XXX-XXXX-XXXXX. Id. Upon demotion, Plaintiff returned to her utility position and, as a result, was put back on lay-off. Id. In May of 2011, Plaintiff returned from lay-off for a week and a dozen or more employees informed her that Defendants were looking to get rid of her and approached her stating that "they're gunning for you" and that "she better watch her back." Id. at 6-7.

On or about June 13, 2011, Plaintiff was suspended for allegedly violating Plant Rule 19 by taking company documents home. Id. at 7. Plaintiff stated in the course of a previous meeting with Defendants Farley, Bierstine and Thompson that she studied her notes regarding the tasks of her new job at home. Id. Plaintiff was given express permission to take her notes and relevant material home by Defendant White, who later denied the "extent" of the permission he gave. Id. On June 17, 2011, Plaintiff met with Defendants Farley, Bierstine, and Thompson whereupon her employment was terminated. Id. Plaintiff contacted Defendant Dabbs protesting her termination and complained that she was not offered a last chance agreement as others were. Id. Defendant Dabbs stated that there were a "number" of reasons why she was not given a "last chance" but did not elaborate. Id. Plaintiff scheduled a meeting to speak with Defendant Dabbs, but it was cancelled and Plaintiff was told by Defendant Farley that the decision to terminate her employment would not be revisited. Id. Upon information and belief, the decision to terminate Plaintiff was made by Defendants Farley, Bierstine, Thompson, and Dabbs. Id.

Plant Rule 19 was not posted as is required by the Plant Rule Book, and it was not available for employee review during Plaintiff's period of employment. Id. Plaintiff alleges that, upon information and belief, similarly situated male employees, employees who do not have a disability, and/or employees who have not engaged in protected activity, have neither been suspended nor terminated for violating Plant Rule 19. Id. Additionally, Plaintiff alleges that "similarly situated male employees and/or employees who do not have a disability and/or employees who have not engaged in protected activity who committed serious acts of misconduct have not been terminated nor referred to as a cunt' as Plaintiff was." Id. at 7-8. Plaintiff was also subjected to silent treatment, taunting, and humiliation on a daily basis. Id. at 8.

Defendants terminated Plaintiff for alleged misconduct. Id. Defendants, upon learning that Debra Bader, an employee of 32 years with the company, was a witness for Plaintiff in her 2009 lawsuit, engaged in actions that forced Ms. Bader to retire prematurely. Id.

Plaintiff alleges that Defendants have caused Plaintiff harm, injury and damage, including but not limited to the following:

(a) Plaintiff has been deprived of income in the form of wages, promotional opportunities and job assignments which were made or denied because of Plaintiff's disability and/or gender and/or in r iation for protected activity; (b) Plaintiff has suffered physical harm in the form of tension, headaches, stomach aches, sleeplessness, nervousness, anxiety, fear and dread, extreme anxiety, embarrassment, humiliation, degradation, stress, depression, insomnia, anger, fear, family discord and dysfunction, stomach upset, and pain; (c) Plaintiff has been forced to suffer severe emotional distress, mental anxiety, depression, and psychological trauma; (d) Plaintiff has been denied equitable employment compensation, equitable employment terms and conditions and privileges of employment because of her disability and/or gender and/or in r iation for protected activity; (e) Plaintiff has been subjected to damage to her good name, humiliation, indignity and shame; (f) Plaintiff has suffered injury to her family and community relations amongst her peers and co-workers; (g) Plaintiff has been caused to incur legal fees and medical expenses; and (h) Plaintiff has been otherwise damaged.

Id. at 8-9.

III. PROCEDURAL HISTORY

Plaintiff originally commenced this action against Defendants Special M s, John Doe(s), and Jane Doe(s), pursuant to New York Civil Practice Law and Rule 305(b) by Summons with Notice, on October 12, 2012. Dkt. No. 1 at 7. Plaintiff alleged in the Summons with Notice that she had been subjected to discrimination and r iation by Defendants while in their employ, and brought this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, the Human Rights Law of the State of New York, and contract and common law. Id. at 6-7. Defendant Special M s filed a notice for removal to the Federal District Court of the Northern District of New York on February 26, 2013. Dkt. No. 1 at 3. Plaintiff filed her complaint with this Court on March 19, 2013, adding Defendants Farley, Bierstine, Thompson, Maschino, Dabbs, and White. Dkt. No. 5 at 11. Confirmation of service of summons for Defendants Farley, Berstein, Thompson, Dabbs, and White, were submitted to the Court on May 28, 2013. Dkt. Nos. 8-12. Confirmation of service of summons for Defendant Maschino was submitted to the Court on June 13, 2013. Dkt. No. 13.

Currently pending before the Court is Defendants' motion to dismiss Plaintiff's third, forth, fifth, sixth, eighth, and eleventh causes of action as brought against Defendant Special M s, and the complaint in its entirety as against Defendants Farley, Bierstine, Thompson, Maschino, Dabbs, and White, pursuant to Rules 12(b)(2), 12(b)(4), 12(b)(5), 12(b)(6), and 12(c) of the Federal Rules of Civil Procedure. Plaintiff opposes Defendant's motion, and cross moves to amend her complaint.

IV. DISCUSSION

A. Defendants Contentions

Defendants present the following arguments in favor of dismissal:

I. Plaintiff's third, fourth, fifth, sixth, eighth, and eleventh causes of action alleging disability discrimination against Special M s must be dismissed due to insufficient process;
II. Plaintiff's Rehabilitation Act claim must be dismissed because the complaint fails to state a claim;
III. The complaint against the individual Defendants must be dismissed for lack of personal jurisdiction;
IV. The complaint must be dismissed against Defendants Bierstine, Dabbs, and Maschino because it ...

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