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Vlad-Berindan v. Lifeworx, Inc.

United States District Court, E.D. New York

April 28, 2014

LIFEWORX, INC. and JEAN N. HELLER, Defendants.


LOIS BLOOM, Magistrate Judge.

Plaintiff Lucia Vlad-Berindan brings this pro se employment discrimination action against defendant LifeWorx, Incorporated ("LifeWorx") and Jean H. Heller ("Heller") pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"), the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA")[1] and various claims under New York law.[2] Plaintiff claims that defendants discriminated against her on the basis of her race, gender, age, national origin and disability. This matter was assigned to me on the parties' consent. (ECF Nos. 7, 9, 12). Plaintiff's motions to withdraw consent, for recusal, to strike, for sanctions, for default judgment, and for reconsideration of the Court's December 5, 2013 order are denied. (ECF Nos. 41-42, 45-46, 49-51, 53-55). Plaintiff's motion to seal her medical records filed as "Exhibit L" of ECF No. 44 is granted. (ECF No. 50). Defendants move to dismiss plaintiff's complaint pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 38). For the reasons set forth below, defendants' motion to dismiss the complaint is granted.


Plaintiff is a fifty-five year old former employee of defendant LifeWorx, a home staffing company. See Compl. at 3, ¶ 7 (ECF No. 1).[3] During a two-month period in 2011, plaintiff was hired by LifeWorx, entered into an Expert Services Agreement with LifeWorx on July 13, 2011 and accepted an assignment to work for Heller, one of LifeWorx's clients on or about July 17, 2011. Id. at 17-19. Plaintiff stopped working for Heller on or about October 4, 2011, when Heller terminated the relationship with LifeWorx. Id. at 19-20, 56. Plaintiff has not received any assignments from LifeWorx since that date. Id. at 8, 19-20.

On March 29, 2012, plaintiff filed a Verified Complaint of Discrimination with the New York State Division of Human Rights ("NYSDHR") against LifeWorx and Brian Martin, an employee of LifeWorx. Id. at 4, ¶ 9; 8; 57-63 (NYSDHR Complaint). In the NYSDHR Complaint, plaintiff checks the boxes to claim discrimination based on marital status, domestic violence victim status, national origin, and sex, but not race, age or disability. Id at 59. As to the acts of discrimination, plaintiff checks the boxes for fired or laid off, did not call me back after a lay-off, sexually harassed me, harassed or intimidated me (other than sexual harassment), denied me leave time or other benefits, paid me a lower salary than other workers in my same title, gave me different or worse job duties than other workers in my same title, and gave me a disciplinary notice or negative performance evaluation. Id. at 61. By letter dated April 25, 2012, plaintiff was informed that her NYSDHR Complaint was dual-filed with the EEOC, charging LifeWorx with a violation of federal law under Title VII. Id. at 8, ¶ 8; 52-53. The letter informed plaintiff, inter alia, that she would have fifteen (15) days from the date of the final determination by the NYSDHR to request review of their findings by the EEOC. Id. at 52.

On September 20, 2012, the NYSDHR found no probable cause that LifeWorx "engaged in or are engaging in the unlawful discriminatory practice complained of." Id at 64-65. The NYSDHR found that for the purposes of New York States Human Rights Law, plaintiff is not an employee, but should be classified as an independent contractor. Even if she were an employee, the NYSDHR found that "there is little evidence that [Vlad-Berindan] was subjected to employment discrimination." Id.

The NYSDHR Determination further informed plaintiff of her rights regarding appeal and review: (1) she could appeal the decision to the New York State Supreme Court by filing within sixty days after service of the Determination; and (2) she could seek review of the Determination by the EEOC by written request submitted within fifteen days of her receipt of the Determination. Id at 65-66. Plaintiff sought neither an appeal nor review by the EEOC.

In mid-December, 2012, plaintiff received the Dismissal and Notice of Rights from the EEOC dated December 12, 2012. Id. at 5; 9; 54 (Dismissal and Notice of Rights for EEOC Charge No. 16G-2012-02685) ("Right to Sue Letter"). Plaintiff filed the instant action on March 21, 2013.

Defendant moves to dismiss plaintiff's complaint pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Defendants argue that plaintiff's Title VII claims are untimely, that any ADA or ADEA claims are administratively unexhausted, and that plaintiff cannot state a claim against Heller because she is not subject to Title VII liability. Defendants also argue that plaintiff's state law intentional infliction of emotional distress claim is time-barred. Moreover, defendants maintain that as all of plaintiff's federal claims should be dismissed, this Court should decline to exercise jurisdiction over plaintiff's state law claims. Plaintiff opposes defendants' motion and has filed multiple motions, attaching hundreds of pages of documents.



Plaintiff's motions to withdraw consent, to strike, for recusal, for sanctions, for default judgment, and to reconsider the Court's December 5, 2013 order are denied for the following reasons.

Plaintiffs motion seeking to rescind her consent (ECF Nos. 51, 52) is denied because she has not presented any "extraordinary circumstances" required by 28 U.S.C. § 636(c)(4) (The court may, for good cause shown on its own motion, or under extraordinary circumstances shown by any party, vacate a reference of a civil matter to a magistrate judge under this subsection); Zerega Ave. Realty Corp. v. Hornbeck Offshore Transp., LLC, No. 04 Civ. 9651, 2011 WL 70593, at *3 (S.D.N.Y. Jan. 10, 2011)[4] (a party's dissatisfaction with a magistrate judge's decision does not constitute an extraordinary circumstance under § 636(c)(4)); Doe v. Nat'l Bd. of Med. Exam'rs, No. Civ. A. 99-4532, 2001 WL 1003206, at *4 (E.D.Pa. Aug.14, 2001) ("Perceived friction between the party and the magistrate judge, even coupled with adverse rulings, is not extraordinary, but is, in fact, quite ordinary and normal.")

Plaintiff also moves for reconsideration under Fed.R.Civ.P. 60 of the Court's December 5, 2013 Order. (ECF Nos. 40, 53 & 54). The standard is strict for granting a motion for reconsideration under either Rule 60(b) of the Federal Rules of Civil Procedure or under Local Rule 6.3 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York. Indeed, a district court will generally deny reconsideration unless the moving party can point to either "controlling decisions or data that the Court overlooked matters that might reasonably be expected to alter the conclusion reached by the court." Lora v. O'Heaney, 602 F.3d 106, 111 (2d Cir. 2010) (quoting Schrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995)). Plaintiff fails to point to any controlling decisions or data that this Court overlooked or that would otherwise lead this Court to alter its conclusion. Therefore, plaintiff's motion for reconsideration is denied. Again, ...

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