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.

Levi v. RSM McGladrey, Inc.

United States District Court, S.D. New York

September 24, 2014



EDGARDO RAMOS, District Judge.

At its core, this employment discrimination case arises out of the alleged wrongful termination of, and subsequent retaliation against, pro se plaintiff Daniel A. Levi ("Plaintiff"). Docs. 2, 18, 28. Plaintiff alleges that he was discriminated against on the basis of sex, race and color, ultimately resulting in both the termination of his employment and an improper denial of the medical benefits to which he was entitled under the Consolidated Omnibus Budget Reconciliation Act ("COBRA"). He therefore brings suit, pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII") and the New York State Human Rights Law (the "NYSHRL"), against his former employer, McGladrey, LLP. ("Defendant").[1] Plaintiff also asserts a claim under the Equal Pay Act (the "EPA").

The case is currently proceeding pursuant to Plaintiff's Second Amended Complaint. Doc. 28 ("Second Am. Compl."). Defendant has moved to dismiss that complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), Doc. 30, arguing that Plaintiff's federal claims are time-barred and that the NYSHRL claim is precluded by Plaintiff's election of remedies. In addition to filing an opposition to Defendant's motion, Doc. 36 ("Pl.'s Opp'n"), Plaintiff submitted a letter that the Court construed as a motion to further amend his complaint in order to name H&R Block, Inc. ("H&R Block") as a co-defendant in the case. Doc. 34 (the "Amendment Letter"). The Amendment Letter indicates that Plaintiff also intends to bring a claim against both Defendant and H&R Block under the Employee Retirement Income Security Act of 1974 ("ERISA"), based on the denial of his COBRA benefits. Defendant opposes both amendments.

For the reasons discussed below, Defendant's motion to dismiss the federal and state discrimination claims is GRANTED in full. Plaintiff's motion to amend is GRANTED in part and DENIED in part. Plaintiff may amend the complaint solely to the extent that he seeks to bring an ERISA claim against Defendant, in its capacity as plan administrator, to recover benefits under 29 U.S.C. ยง 1132(a)(1)(B) (or for certain alternative forms of relief, as discussed in more detail below).

I. Factual Background[2]

The following facts are based on the allegations in the Second Amended Complaint, which the Court accepts as true for purposes of the instant motion. See Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012) (evaluating a Rule 12(b)(6) motion); J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004) (citing Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)) (evaluating a Rule 12(b)(1) motion).

Plaintiff is an African American-Native Indian American male. See Second Am. Compl. at 11. He began working for Defendant on a temporary basis in February 2008, before being retained as a direct hire three months later. Id. at 12. While working for Defendant, Plaintiff received positive evaluations. Id. However, during a brief April 4, 2009 meeting with Defendant's human resources department, Plaintiff was informed that a female employee had accused him of wearing dungarees, being violent, and engaging in inappropriate sexual conduct, accusations that Defendant "completely and unequivocally denied." Id. at 27-28.

Plaintiff maintains that, in actuality, he was the one who was subjected to a "consistent hostile work environment" fostered by his female colleagues. Id. at 22, 25-26. He also alleges that, while employed by Defendant, he was paid less than Defendant's female employees. Id. at 36-37. Nevertheless, Plaintiff received a termination letter, dated April 30, 2009, indicating that his employment would end effective May 1 of that year. Id. Ex. F.[3] The letter did not state a specific cause for the termination, and Plaintiff was successfully able to obtain unemployment benefits. See id. at 14-15, Ex. F, I. According to Plaintiff, his termination served as retaliation for having informed management about the hostile work environment to which he was being subjected. See id. at 34.

Subsequent to his termination, on July 6, 2009, Plaintiff submitted a COBRA application pursuant to the instructions he received from Defendant. Id. at 15, Ex. J. The application was returned the following week, with a notation indicating that his misconduct rendered him ineligible for COBRA. Id. at 15, Ex. K. A follow-up letter arrived the next day, July 14, 2009, indicating that Defendant was not required to offer Plaintiff COBRA coverage because he had been terminated for "gross misconduct." Id. at 15, Ex. M. On August 16, 2009, Plaintiff submitted a written request for an appeal. Id. at 17, Ex. P. That appeal was denied by letter dated November 4, 2009. Id. Ex. L.

Plaintiff alleges that, with the assistance of his attorney, he repeatedly sought information and documentation relating to the accusations levied against him and the consequent denial of his COBRA benefits. See, e.g., id. at 17-19. He maintains that the denial of benefits constituted "a continuing part of the discrimination and retaliation" against him. Id. at 17. On April 26, 2010, he dual-filed an administrative complaint with the New York State Division of Human Rights (the "NYSDHR") and the United States Equal Employment Opportunity Commission (the "EEOC"). Id. at 13. It was only on June 2, 2010, when Defendant submitted its response to the NYSDHR, that Plaintiff received a written summary of his alleged misconduct. Id. at 18.

The NYSDHR dismissed the administrative complaint based on a finding of no probable cause, and that finding was adopted by the EEOC, which issued Plaintiff a right-to-sue letter. Id. at 20-21, Ex. V, X. This lawsuit followed, with Plaintiff's original Complaint being filed on December 3, 2012. Doc. 2.

II. Plaintiff's State Law Claim Is Barred by His Election of Remedies

Defendant argues that Plaintiff is precluded from asserting a claim under the NYSHRL because he elected to pursue that claim administratively before the NYSDHR. See Def.'s Mem. of Law in Supp. at 4-6. "Because the election of remedies limitation divests a federal court of jurisdiction to decide [a] state law claim, a motion to dismiss on this ground is properly brought pursuant to Federal Rule of Civil Procedure 12(b)(1)." Skalafuris v. City Univ. of N.Y., No. 09 Civ. 5693 (SAS), 2010 WL 1050299, at *2 (S.D.N.Y. Mar. 22, 2010) (footnote omitted), aff'd sub nom. Skalafuris v. City of N.Y., 444 F.Appx. 466 (2d Cir. 2011).

A. Legal Standard

Federal Rule of Civil Procedure 12(b)(1) requires that an action be dismissed for lack of subject matter jurisdiction when the district court lacks the statutory or constitutional power to adjudicate the case. Fed.R.Civ.P. 12(b)(1). The party asserting subject matter jurisdiction carries the burden of establishing, by a preponderance of the evidence, that jurisdiction exists. Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). On a Rule 12(b)(1) motion challenging the district court's subject matter jurisdiction, evidence outside of the pleadings, such as affidavits, may be considered by the court to resolve the disputed jurisdictional fact issues. Zappia Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000); see also Morrison, 547 F.3d at 170 (citing Makarova, 201 F.3d at 113). When evaluating a motion to dismiss for lack of subject matter jurisdiction, the court accepts all material factual allegations in the complaint as true, but does not draw inferences from the complaint favorable to the plaintiff. Attica Cent. Sch., 386 F.3d at 110 (citing Drakos, 140 F.3d at 131).

"Despite the lenient standards with which courts review pro se complaints, pro se plaintiffs must establish subject matter jurisdiction." Hill v. Douglas, No. 09 Civ. 4259 JS/ARL, 2010 WL 395817, at *2 (E.D.N.Y. Jan. 15, 2010).

B. Discussion

The NYSHRL provides, in relevant part, as follows:

Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages... and such other remedies as may be appropriate... unless such person had filed a ...

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.