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Lewis v. Livingston County Ctr.

United States District Court, W.D. New York

June 25, 2014

CINDY L. LEWIS, Plaintiff,

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For Cindy L. Lewis, Plaintiff: Michelle Yvonne Cimino, LEAD ATTORNEY, Rochester, NY.

For Livingston County Center for Nursing and Rehabilitation, Defendant: Michael P. McClaren, LEAD ATTORNEY, Jeremy A. Colby, Ryan G. Smith, Webster Szanyi, LLP, Buffalo, NY.

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ELIZABETH A. WOLFORD, United States District Judge.


Plaintiff Cindy L. Lewis (" Plaintiff" ) brings this action against Livingston County Center for Nursing and Rehabilitation (" Defendant" or " Livingston County CNR" ), alleging violations of Title I of the Americans with Disabilities Act of 1990 (" ADA" ), 42 U.S.C. § § 12201 et seq., and the New York State Human Rights Law (" NYSHRL" ), Executive Law § § 290 et seq., for purported discrimination and retaliation based on her alleged disability. Defendant has filed a motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6), and Plaintiff has filed a cross-motion to amend the complaint pursuant to Fed.R.Civ.P. 15(a)(2). (Dkt. 9 & 12). For the reasons set forth below, Plaintiff's cross-motion to amend is granted, and Defendant's motion to dismiss is granted in part and denied in part.


Plaintiff, a certified nursing assistant (CNA) and former employee of Defendant, alleges that Defendant unlawfully discriminated against her on the basis of disability during her employment. (Dkt. 1). Plaintiff alleges that she was employed by Defendant for 25 years prior to her termination on or about July 22, 2009, and that, throughout her employment, she was " repeatedly injured at work causing her to sustain hip, neck, knee, and left leg injuries including trochaleric bursitis." ( Id. at ¶ ¶ 12-13). Plaintiff filed for workers' compensation benefits as a result of her injuries and was found to have a permanent, partial disability of her left leg. ( Id. at ¶ 14).

Plaintiff alleges that her treating physician restricted het from working more than two, 12-hour shifts per week. ( Id. at ¶ 15). Plaintiff further alleges that she provided Defendant with documentation regarding this restriction, and that Defendant accepted them " as ordered by her treating physician" on July 29, 2008, January 6, 2009, March 16, 2009, and July 15, 2009. ( Id. at ¶ 16). Plaintiff alleges that the " major life activities" as defined by the ADA that were affected by her disability included " caring for oneself. . . and working," and that Defendant regarded her as having such an impairment. ( Id. at ¶ ¶ 17-18).

Plaintiff further alleges that, " [s]marting in or around 2005, the County initiated a policy called 'mandation' . . . in which the County was allowed to 'mandate' employees on duty to stay and work an additional four to eight hours with no prior notice," and that any CNAs " who refused to work the additional hours beyond their normal 8 hour shift were considered 'insubordinate' and subjected to 'progressive discipline.'" ( Id. at ¶ ¶ 19-20). Plaintiff alleges that the mandation policy permitted sick or injured employees to request a limitation on the number of overtime hours they were required to work for up to 12 weeks per year; however, " after 12 weeks of restrictions, if an employee was medically restricted from working overtime they were nonetheless subjected to discipline if they

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refused to work overtime." ( Id. at ¶ ¶ 21-22).

Plaintiff alleges that, starting around 2007, she requested medical restrictions on the number of hours she had to work past her normal eight-hour shift " on at least nine occasions," but Defendant granted these requests only twice, in January 2008, and in April 2008. ( Id. at ¶ ¶ 23-24). As a result, Plaintiff alleges that she refused " mandation of overtime in excess of four hours past her 8 hour shift on at least eight occasions because the mandated overtime hours were in violation of her medical restrictions and would jeopardize her health and cause her severe physical pain." ( Id. at ¶ 25).

As a result of her refusal of mandated overtime, Plaintiff allegedly was subjected to progressive adverse employment actions including, but not limited to, " written warnings, written counseling, a suspension of five days without pay three different times . . . and ultimately termination on July 29, 2009." ( Id. at ¶ 26). Plaintiff further alleges that she complained to her Union and filed grievances regarding Defendant's failure to comply with her request for an accommodation under the ADA and the disparate treatment she received as a result of her request for an accommodation. ( Id. at ¶ 27). Plaintiff does not provide the dates on which the complaint was made and the grievances were filed, but alleges that Defendant did not take effective action to address her complaints of discriminatory treatment. ( Id. at ¶ 28). She also alleges that Defendant " subjected [her] to illegal retaliation" by mandating her to work eight hours beyond her eight-hour shift in violation of her medical restrictions when other CNAs were permitted to work shorter overtime periods. ( Id. at ¶ 30).

On March 29, 2011, the Equal Employment Opportunity Commission (" EEOC" ) issued a determination that there was reasonable cause to believe that Defendant " has a written policy which violates the ADA and that [Defendant] disciplined and discharged [Plaintiff] because of disability." (Dkt. 11-1 at 3).

Plaintiff commenced the instant action on February 29, 2012. (Dkt. 1). On May 14, 2012, Defendant moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6), arguing that Plaintiff's claims should be dismissed on several grounds, including: (1) Defendant lacks the capacity to be sued; (2) Plaintiff failed to serve a notice of claim with regard to her NYSHRL claims; (3) Plaintiff is not " otherwise qualified" under the ADA because mandated overtime is an " essential function" of her position; (4) Plaintiff's accommodation is unreasonable because it seeks to alter the rights of other employees; (5) Plaintiff was accommodated; and (6) Plaintiff failed to adequately allege a causal connection between the protected activity and alleged retaliation. (Dkt. 9-3 at 3).

Plaintiff filed response papers and a cross-motion for leave to amend the complaint on July 12, 2012, seeking to add Livingston County as a defendant and remove the Livingston County CNR. (Dkt. 11, 12 & 13). On July 19, 2012, Plaintiff filed a declaration with a red-lined proposed amended complaint. (Dkt. 17). The sole proposed amendment to the complaint was the replacement of Livingston County CNR with Livingston County as the defendant. (Dkt. 17-1 at 2). Defendant submitted a reply to its motion to dismiss and a response to Plaintiff's cross-motion to amend on July 25, 2012. (Dkt. 18).

On February 21, 2014, the case was transferred to the undersigned with no decision having been rendered concerning the pending motions. (Dkt. 20). Oral argument was held on May 12, 2014. (Dkt. 23). Following the oral argument, the Court

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permitted the parties to submit letter briefs addressing the issue of whether Plaintiff failed to exhaust her claim against Livingston County by not naming the County in her EEOC charge. ( Id.). Defendant submitted a letter brief on May 23, 2014, and Plaintiff submitted a letter brief on May 27, 2014. (Dkt. 24 & 25).


I. Legal Standard

" 'In considering a motion to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.'" Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir. 1996) (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991)). A court should consider the motion " accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiff's favor." Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (internal quotations and citation omitted). To withstand dismissal, a plaintiff must set forth " enough facts to state a claim to relief that is plausible on its face." Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " 'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the ...

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