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Clemmer v. Fordham Bedford Cmty. Servs.

United States District Court, S.D. New York

January 16, 2015

GONZALBA CUEVAS CLEMMER, Plaintiff,
v.
FORDHAM BEDFORD COMMUNITY SERVICES and JOHN GARCIA, EX. DIRECTOR, Defendants

Gonzalba Cuevas Clemmer, Plaintiff, Pro se, Bronx, N.Y. USA.

For Fordham Bedford Community Services, John Garcia, Ex. Director, Defendants: Robyn Leigh Silvermintz, LEAD ATTORNEY, Winget Spadafora & Schwartzberg, LLP, New York, N.Y. USA.

MEMORANDUM AND ORDER

ANALISA TORRES, United States District Judge.

In this employment discrimination action, Plaintiff pro se, Gonzalba Cuevas Clemmer, alleges that Defendants, Fordham Bedford Community Services (" FBCS11) and John Garcia, violated Title VII of the Civil Rights Act of 1964 ('Title VII*1), 42 U.S.C. § § 2000e et seq., the Age Discrimination in Employment Act of 1967 (" ADEA"), 29 U.S.C. § § 621 et seq., the Americans with Disabilities Act of 1990 (" ADA11), 42 U.S.C. § § 12112 et seq., the New York State Human Rights Law (" NYSHRL11), N.Y. Exec. Law § § 290 et seq., and the New York City Human Rights Law (" NYCHRL"), N.Y.C. Admin. Code § § 8-101 et seq . Defendants move to dismiss all claims other than the ADA claim against FBCS pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons stated below, Defendants' motion is GRANTED.

BACKGROUND

Plaintiff is a former employee of FBCS. Compl. ¶ 11.E, ECF No. 2. She is fifty-nine years old and suffers from " feet/leg problems, migraine[s], thyroid[], [problems], [and] fibromyalgia." Id. II.D. Prior to her termination on July 30, 2012, Plaintiff worked for FBCS for ten years. Id. II.E. Plaintiff contends that, based on her age and disability or perceived disability, Defendants unlawfully: (1) terminated Plaintiff's employment; (2) failed to accommodate Plaintiff's disability; (3) retaliated against Plaintiff; and (4) verbally harassed Plaintiff. Id. ¶ ¶ II.A, D.

On March 14, 2013, Plaintiff filed a complaint with the New York State Division of Human Rights (the " NYSDHR") that charged FBCS with " an unlawful discriminatory practice relating to employment in violation of [the NYSHRL and the ADA] because of disability, opposed discrimination/retaliation." Silvermintz Deck, Ex. B at 2-3, ECF No. 10-2. Specifically, Plaintiff alleged, inter alia, that the director of FBCS ( i.e., John Garcia): (1) " would harass [Plaintiff] verbally"; (2) " would go to [Plaintiff's] office to see what messages [she] was writing and to whom"; (3) " would give [Plaintiff] ultimatums and refuse[] to give [Plaintiff] permission to recuperate from [her] state of health"; (4) " gave [Plaintiff] negative evaluations"; and (5) " refused to give [Plaintiff] . . . training." Id. Plaintiff " authorize[d] [the NYSDHR] to accept [her] verified complaint on behalf of the U.S. Equal Employment Opportunity Commission" (the " EEOC"). Id. at 3.

On November 19, 2013, after conducting an investigation, the NYSDHR issued a determination and order, finding " NO PROBABLE CAUSE to believe that [FBCS] has engaged in or is engaging in the unlawful discriminatory practice complained of ' and that " [a]ll actions taken in relation to [Plaintiff's] employment were motivated by legitimate and nondiscriminatory reasons and not discriminator)' animus." Silvermintz Deck, Ex. C at 2-3, ECF No. 10-3. Accordingly, the NYSDHR dismissed Plaintiff's complaint. Id. at 3.

On January 8, 2014, the EEOC notified Plaintiff that it " ha[d] adopted the findings of the state or local fair employment practices agency that investigated [Plaintiff's] charge" ( i.e., the NYSDHR) and that Plaintiff had the right to sue " the respondent(s) under federal law based on [her] charge in federal or state court" within ninety days. Compl. 6. Plaintiff filed the complaint in this action on March 25, 2014.

DISCUSSION

I. Standards of Review

A. Rule 12(b)(1)

" A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). To survive a Rule 12(b)(1) motion to dismiss, the plaintiff " has the burden of proving by a preponderance of the evidence that [subject matter jurisdiction] exists." Id. On such a motion, " the district court must take all uncontroverted facts in the complaint. . . as true, and draw all reasonable inferences in favor of the party asserting jurisdiction." Tandon v. Captain's Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014). However, " [w]here jurisdictional facts are placed in dispute, the court has the power and obligation to decide ...


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