Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wiseman v. 7-Eleven, Inc.

United States District Court, W.D. New York

July 2, 2014

7-ELEVEN, INC., PAULA WEIL, individually, and CINDY WILCZEWSKI, individually, Defendants.


HUGH B. SCOTT, Magistrate Judge.


The Hon. Richard J. Arcara referred this case to this Court under 28 U.S.C. § 636(b). (Dkt. No. 9.) Pending before the Court are two different defense motions seeking dismissal of the complaint that plaintiff Betty Wiseman ("Wiseman") has filed. Defendant 7-Eleven, Inc. ("7-11") has filed a motion (Dkt. No. 7) to quash service and to dismiss under Rule 12(b)(5) of the Federal Rules of Civil Procedure ("FRCP"). Individual defendants Paula Weil ("Weil") and Cindy Wilczewski ("Wilczewski") filed their own motion to dismiss (Dkt. No. 8) for failure to state a claim under Rule 12(b)(6). 7-11 argues that Wiseman did not serve it properly because she served the summons and complaint on Wilczewski when Wilczewski was not authorized to accept service for it. Weil and Wilczewski argue that Wiseman never named them at the administrative level, that the relevant federal disability statutes do not provide for individual liability, and that Wiseman has not alleged any tangible employment actions that would create liability under state human-rights statutes. Wiseman responds to 7-11's motion by arguing that Wilczewski told the process server that she could accept service, and that the process server reasonably relied on that representation. Wiseman responds to Weil and Wilczewski's motion by arguing that her claims against them fall under state human-rights statutes that have no administrative prerequisite, meaning that the Court can exercise supplemental jurisdiction over those claims as long as it has jurisdiction over the federal claims that she made against 7-11. Wiseman argues further that her original complaint contains sufficiently cognizable allegations of discrimination but that, in the alternative, the Court should allow her to file and to serve the proposed amended complaint that she attached to her motion papers. The Court construes the alternative argument for leave to amend as a cross-motion for leave to amend under Rule 15(a)(2) of the FRCP.

The Court held oral argument on June 17, 2014. For the reasons below, the Court respectfully recommends granting Wiseman's cross-motion for leave to amend her complaint. The Court specifically recommends that Wiseman have 68 days from the ultimate resolution of this Report and Recommendation to file and to serve the proposed amended complaint with the revision that the Court recommends below. The Court respectfully recommends denying defendants' motions.


This case concerns allegations that defendants ignored Wiseman's learning disability and cancer-related medical illnesses, and marginalized her until she quit after less than a year on the job. Wiseman applied for a job as a part-time cashier at 7-11 around February 2012; 7-11 hired her in late November 2012.[1] At the time of her hiring, Wiseman had an unspecified learning disability and cancer, and defendants knew about both conditions. The job appears to have called for 24 hours a week of work. Weil and Wilczewski were the store manager and assistant store manager, respectively, and supervised Wiseman. The 7-11 branch in question is located at 398 Dingens Street in Buffalo, New York; 7-11 asserted at oral argument that the branch is nationally owned by the corporation and is not an independent franchise.

From the beginning of Wiseman's employment, Weil and Wilczewski, and 7-11 through them, allegedly singled out Wiseman because of her conditions. Some of the alleged treatment from Weil and Wilczewski consisted of day-to-day conduct, such as ignoring Wiseman when she spoke, calling her "slow, " and yelling at her in front of co-workers and customers. Other alleged treatment had a more concrete impact on Wiseman's work conditions. Wiseman has alleged that Weil and Wilczewski refused to train her for her job, told her that training was not important, and kept her away from co-workers who tried to train her. Weil and Wilczewski refused to offer any training or assistance even when Wiseman struggled with unruly or threatening customers, apparently preferring to let Wiseman struggle with those customers. Wiseman did not provide a precise timeframe, but she claimed that her hours dropped from the assigned 24 hours per week with no explanation. In February 2013, Weil pressured Wiseman into reporting for work while Wiseman was suffering a cancer-related illness that forced her to miss a few days of work. Wiseman's attendance allegedly was unnecessary and thus abusive, because when she arrived for work, another employee was present and handling the necessary responsibilities.

Later that month, Wiseman decided to discuss her situation with the New York State Division of Human Rights ("NYSDHR"). Wiseman notified Weil and Wilczewski that she contacted the NYSDHR to file a complaint, which she ultimately did file on April 23, 2013. In her NYSDHR complaint, Wiseman made allegations about the lack of training and added that, in addition to Weil and Wilczewski, she also spoke to a District Manager named Jeff Mead ("Mead"). Mead allegedly took no action. Wiseman also elaborated in the NYSDHR complaint that her illness in February 2013 consisted of pneumonia but that she had medical clearance to return to work on February 15, 2013 with a heavy lifting restriction. When she returned, Wiseman allegedly found that Weil hired another employee in her absence, gave her what appears to be a significant portion of Wiseman's hours, and declined to restore those hours to Wiseman. Finally, Wiseman included an incident from January 2013 in her NYSDHR complaint that did not appear in her original complaint in this case. In January 2013, Wiseman received a doctor's note that recommended that she take a 10-15 minute break every two hours as an accommodation for her disability. Wiseman presented the note to Weil, who allegedly responded not only by refusing the accommodation but also by reducing Wiseman's weekly hours.

According to Wiseman, her work environment deteriorated after she told Weil and Wilczewski that she had contacted the NYSDHR. The day-to-day harassment and ridicule allegedly intensified, though Wiseman did not quantify the intensification. Weil and Wilczewski allegedly discussed Wiseman's NYSDHR complaint with customers and reduced her hours to one hour per week. Meanwhile, Wiseman opened a separate file with the federal Equal Employment Opportunity Commission ("EEOC"); the exact chronology of the EEOC file is not clear from the record, but Wiseman did receive a Notice of Right to Sue on March 25, 2014. (Dkt. No. 15-4 at 2.) Wiseman ultimately quit her job on May 17, 2013.

Wiseman changed course from administrative to judicial remedies after quitting her job. In the fall of 2013, Wiseman retained counsel, the same counsel representing her here. On November 7, 2013, Wiseman's counsel asked the NYSDHR to dismiss her administrative case in favor of federal litigation. Pursuant to Section 297.3(c) of the New York State Human Rights Law ("NYSHRL"), the NYSDHR dismissed Wiseman's administrative complaint on November 25, 2013 on the grounds of administrative convenience. On February 21, 2014, Wiseman filed her complaint here, naming 7-11 and Weil and Wilczewski individually. The complaint contained six claims, arranged in pairs. The first two claims alleged discrimination based on disability in violation, respectively, of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-12213, and the NYSHRL, N.Y. Exec. L. §§ 290-301. The next two claims alleged a hostile work environment based on disability in violation of the ADA and the NYSHRL, respectively. The last two claims alleged denial of reasonable accommodations, again under each of the respective federal and state statutes. Wiseman filed her affidavits of service on April 1, 2014. (Dkt. Nos. 3-5.)

Defendants filed their respective motions on April 16, 2014, shortly after Wiseman filed her affidavits of service. Through its motion, 7-11 made a limited appearance to challenge Wiseman's service of process. According to 7-11, Wiseman attempted to serve it by serving Wilczewski at the Dingens Street store. 7-11 argues that Wilczewski was not authorized to accept service for it and that the corporate agents authorized to accept service never received service. 7-11 concludes that the Court should quash Wiseman's attempted service as defective. From there, 7-11 also concludes that the Court should dismiss the complaint altogether for insufficient service of process; 7-11 does not articulate a rationale for outright dismissal except to note, in its reply papers, that Wiseman's proposed amended complaint would not in itself cure defective service. As for Weil and Wilczewski, they advance two arguments for dismissal as against them. Weil and Wilczewski argue that the Court should dismiss the entire complaint as against them for failure to exhaust administrative remedies. Weil and Wilczewski argue that Wiseman never named them as respondents in either her NYSDHR or EEOC proceedings. Weil and Wilczewski assert that Wiseman needed to name them in her administrative proceedings before she could proceed with litigation. In the alternative, Weil and Wilczewski argue that the Court should dismiss any ADA claims against them because the ADA does not provide for individual liability. Wiseman's NYSHRL claims against Weil and Wilczewski also should fail, according to them, because Wiseman makes only conclusory allegations about Weil and Wilczewski's supervisory authority and about their aiding and abetting anyone else who may have had that authority.

Wiseman urges rejection of both pending motions. Wiseman argues that service on 7-11 was adequate because Wilczewski told the process server that she could accept service. The process server, according to Wiseman, reasonably relied on Wilczewski's representation because he knew that Wilczewski was a store manager. In the alternative, Wiseman makes two requests. Wiseman asks for a chance to serve the original complaint on 7-11 again, since the time to serve had not expired when 7-11 filed its motion. Second, Wiseman makes what the Court has construed as a cross-motion for leave to amend her complaint under Rule 15(a)(2). Wiseman attached a proposed amended complaint to her motion papers. The proposed amended complaint does not delete anything from the original complaint. Instead, the proposed amended complaint adds details about the supposedly hostile work environment, most of which appeared in Wiseman's NYSDHR complaint. The proposed amended complaint also adds two pairs of corresponding claims against defendants: retaliation in violation of the ADA and the NYSHRL; and constructive discharge in violation of the ADA and the NYSHRL. As for Weil and Wilczewski's motion, Wiseman concedes that individual liability does not exist under the ADA but argues that Weil and Wilczewski face liability under the NYSHRL. The NYSHRL has no administrative prerequisite, according to Wiseman, and the Court can exercise supplemental jurisdiction under 28 U.S.C. § 1367 so long as the ADA claims against 7-11 survive. On substance, Wiseman asserts that the original complaint sufficiently sets forth Weil and Wilczewski's authority to hire, to train, and to set work hours; and sufficiently sets forth how demeaning treatment created a hostile work environment, especially after Wiseman contacted the NYSDHR. In the alternative, Wiseman extends her request for leave to file an amended complaint to Weil and Wilczewski as well.


A) Wiseman's motion to amend the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.