Opinion
06 Civ. 770 (SAS).
November 15, 2006
Plaintiff (Pro Se): Leticia Tamondong, Springfield Gardens, NY.
Counsel for Defendants: Michele C. Horan, Esq., HORAN HORAN L.L.P., White Plains, NY.
OPINION AND ORDER
The relevant facts are drawn from this Court's earlier Opinion and Order, familiarity with which is presumed. See Tamondong v. GMAC Commercial Credit LLC, No. 06 Civ. 770, 2006 WL 2019755 (S.D.N.Y. July 11, 2006). I repeat here only those facts that pertain to this particular motion.
Leticia Tamondong filed this pro se action against GMAC Commercial Credit LLC ("GMAC"), Corbyn Westerlow, and Charles Busuttil, alleging various federal and state law claims of employment discrimination, wrongful termination, and denial of benefits. On July 11, 2006, this Court dismissed all claims against GMAC, but directed Tamondong to show cause why her case against the individual defendants should not be dismissed. For the following reasons, Tamondong's claims are dismissed as to the individual defendants.
Tamondong alleges that GMAC, Westerlow, and Busuttil: (1) discriminated against her due to a disability caused by work related injuries; (2) denied her reasonable accommodations; (3) created a hostile work environment; (4) wrongfully terminated her employment while she was out on leave; and (5) denied her long-term disability ("LTD") and profit-sharing benefits. See Complaint ("Compl.") at 2-4.
See Tamondong, 2006 WL 2019755, at *1.
II. BACKGROUND
In January 1999, Tamondong sustained multiple injuries during the installation of electrical sockets in her work area while employed by the Bank of New York. Westerlow, Tamondong's immediate supervisor, was employed as an Assistant Vice President and Busuttil was the Senior Vice President of Human Resources. Tamondong claims that Westerlow and Busuttil, as employees and officers of GMAC, carried out GMAC's discriminatory and wrongful employment policies.
See Compl. at 1. Tamondong's injuries included herniated discs, cord compression, and cervical radiculopathy. See id. These injuries caused Tamondong to be out of work from January 27, 1999 to February 23, 1999, during which time she received workers' compensation benefits. See id.
See id.
See Plaintiff's Opposition to Opinion and Order ("Opp. Mem.") at 1.
When Tamondong returned to work on February 24, 1999, she requested a lower terminal for her computer keyboard to alleviate some of the discomfort caused by her injuries. The request was denied. Tamondong alleges that Westerlow created a hostile work environment by "angrily pull[ing] out a right drawer in plaintiff's desk[,] slamm[ing] her keyboard and order[ing] her to place the keyboard on it while the monitor was located on the left side of her desk." Tamondong also requested a reduced work schedule, but Westerlow responded "that the plaintiff's job was a full time job."
See id.
See id.
Opp. Mem. at 5.
Id. at 5-6.
Tamondong also states that she made numerous requests for LTD benefits from Busuttil and GMAC's Human Resources department, but was repeatedly ignored. In a letter to Busuttil dated March 11, 2001, Tamondong specifically requested a LTD application. Busuttil failed to respond to Tamondong's requests. Tamondong was eventually informed that her employment would be terminated unless she applied for short-term disability benefits ("STD"). Tamondong alleges that she was unable to apply for STD benefits because she was receiving workers' compensation benefits and that she provided GMAC's Human Resources department with all of the appropriate documentation in support of her workers' compensation claim. GMAC terminated Tamondong's employment on February 7, 2001.
See id. at 3.
See Letter from Tamondong to Busuttil, Ex. F. to Opp. Mem., at 1.
See Opp. Mem. at 4.
See Compl. at 2.
See id.
See id. at 4.
III. LEGAL STANDARD
A. Motion to Dismiss
Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a motion to dismiss should be granted only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.'" The task of the court in ruling on a Rule 12(b)(6) motion is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." The Second Circuit has held that all complaints "must be read liberally; dismissal on the pleadings never is warranted unless the plaintiff's allegations are doomed to fail under any available legal theory." When deciding a motion to dismiss, courts must accept all factual allegations in the complaint as true and draw all reasonable inferences in plaintiff's favor. A complaint "`need not set out in detail the facts upon which the claim is based.'" Thus, a complaint may not "`be dismissed on the ground that it is conclusory or fails to allege facts.'" However, although "`the pleading standard is a liberal one, bald assertions and conclusions of law will not suffice.'"
Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Eternity Global Master Fund Ltd. v. Morgan Guar. Trust Co. of N.Y., 375 F.3d 168, 176 (2d Cir. 2004) (quotation marks and citation omitted).
Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005) (emphasis omitted).
See Ontario Pub. Serv. Employees Union Pension Trust Fund v. Nortel Networks Corp., 369 F.3d 27, 30 (2d Cir. 2004), cert. denied, 543 U.S. 1050 (2005) (quotation marks and citation omitted).
Leibowitz v. Cornell Univ., 445 F.3d 586, 591 (2d Cir. 2006) (citing Twombly v. Bell Atl. Corp., 425 F.3d 99, 107 (2d Cir. 2005) (quoting Conley, 355 U.S. at 47)).
In re Initial Pub. Offering Sec. Litig., 241 F. Supp. 2d 281, 323 (S.D.N.Y. 2003) (quoting Higgs v. Carver, 286 F.3d 437, 439 (7th Cir. 2002)).
Law Offices of Curtis V. Trinko, L.L.P., v. Bell Atl. Corp., 309 F.3d 71, 74 (2d Cir. 2002) (quoting Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996)).
Courts generally do not consider matters outside the pleadings but may consider documents attached to, referenced in, or integral to the pleadings. In addition, because plaintiff is appearing pro se, the factual allegations in her Opposition Memorandum and attached exhibits will be treated as part of her Complaint. Because "most pro se plaintiffs lack familiarity with the formalities of pleading requirements, [courts] must construe pro se complaints liberally, applying a more flexible standard to evaluate their sufficiency."
See Subaru Distribs. Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d Cir. 2005) (citing International Audiotext Network, Inc. v. AT T Co., 62 F.3d 69, 72 (2d Cir. 1995)).
See Gill v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering pro se plaintiff's affidavit in opposition to defendant's motion to dismiss in reviewing district court's dismissal of claim).
Lerman v. Board of Elections in the City ofN. Y., 232 F.3d 135, 140 (2d Cir. 2000) (citing Hughes v. Rose, 449 U.S. 5, 9-10 (1980) and Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
B. Claims Brought Under the Americans with Disability Act ("ADA")
A plaintiff may bring a claim against an employer in federal district court under the ADA after filing a timely charge with the United States Equal Employment Opportunity Commission. However, the Second Circuit has held that the ADA imposes no personal liability on individual defendants, even if they have supervisory control over the plaintiff.
See LeProvost v. New York, No. 03 Civ. 2544, 2004 WL 32860, at *7 (S.D.N.Y. Jan. 6, 2004) (citing Butts v. City of N.Y. Dep't. of Hous. Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superseded by statute on other grounds as stated in Hawkins v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir. 1998)).
See Corr v. MTA Long Island Bus, 199 F.3d 1321, 1321 (2d Cir. 1999).
C. Claims Brought Under the Employment Retirement Income Security Act ("ERISA")
ERISA authorizes civil actions against: (1) an administrator of an employee benefits plan for failure to comply with a request to provide information; and (2) against plan fiduciaries for breach of fiduciary duties. A plan fiduciary is one who either exercises discretionary authority or control over the management of the plan or disposition of its assets; renders investment advice for compensation with respect to money or property of the plan, or has authority to do so; or has discretionary authority in the administration of such plan. "[T]he `management or disposition' language in ERISA refers to the common transactions in dealing with a pool of assets: selecting investments, exchanging one instrument or asset for another, and so on." However, "an individual cannot be liable as an ERISA fiduciary solely by virtue of [his] position as a corporate officer, shareholder, or manager."
See generally 29 U.S.C. § 1132.
See id. § 1002(21)(A).
Harris Trust and Sav. Bank v. John Hancock Mut. Life Ins. Co., 302 F.3d 18, 28 (2d Cir. 2002) (citation omitted).
Sasso v. Cervoni, 985 F.2d 49, 50 (2d Cir. 1993).
Further, as required by ERISA, an employee benefits plan must provide its participants with a reasonable opportunity to obtain a "full and fair review" after denial of a claim. The doctrine of exhaustion of administrative remedies rests on the principle "`that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.'" "It is well settled that timely exhaustion of plan remedies is a prerequisite to suit in federal court and that, absent appropriate equitable considerations, court action is barred absent such exhaustion." A claimant is "required to exhaust even if she [i]s ignorant of the proper claims procedure." If a plaintiff fails to allege that he or she has exhausted administrative remedies, the claim must be dismissed. Failure to exhaust remedies may be excused on the grounds of futility "only `where claimants make a clear and positive showing that pursuing available administrative remedies would be futile.'"
Id. § 1133(2).
Kennedy v. Empire Blue Cross and Blue Shield, 989 F.2d 588, 592 (2d Cir. 1993) (quoting Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51 (1938)).
Sanfilippo v. Provident Life and Cas. Ins. Co., 178 F. Supp. 2d 450, 458 (S.D.N.Y. 2002). Accord Denton v. First Nat'l Bank of Waco, TX, 765 F.2d 1295, 1300 (5th Cir. 1985).
Davenport v. Harry N. Abrams, Inc., 249 F.3d 130, 134 (2d Cir. 2001).
See Benaim v. HSBC Bank USA, 94 F. Supp. 2d 518, 519 (S.D.N.Y. 2000).
Davenport, 249 F.3d at 133 (quoting Kennedy, 989 F.2d at 594).
IV. DISCUSSION
A. Tamondong Has Failed to State a Claim for Employment Discrimination Under the ADA
Because it is well established that individuals may not be held liable for damages under the ADA, Tamondong has not stated a legally cognizable claim for relief against Westerlow and Busuttil. Defendants' motion to dismiss Tamondong's claims of disability discrimination and failure to accommodate is granted.
B. Tamondong Has Failed to Allege a Claim for Denial of Benefits Under ERISA
Tamondong has raised no facts suggesting that Westerlow or Busuttil acted as administrators of any employee benefits plans. Tamondong has also not alleged that either defendant was a plan fiduciary. Further, even if defendants are plan fiduciaries or administrators, Tamondong has failed to exhaust administrative remedies under the Fidelity Corporate Plan for Retirement and the First Unum Life Insurance Company Plan. Therefore, her claims against the individual defendants for denial of LTD benefits are barred and must be dismissed.
The Fidelity Corporate Plan for Retirement covers GMAC's 401(k) and Profit Sharing Plan. It prescribes the remedies available to a person asserting a claim under the plan. See GMAC's 401(k) and Profit Sharing Plan governed by Fidelity Corporate Plan for Retirement at 82. Once a claim is denied or deemed denied — either because the employee receives written notice of the denial or ninety days have passed since the employee made a request for benefits — the employee has sixty days to request review of that denial by the plan administrator. See id.
The First Unum Life Insurance Company Plan prescribes the administrative remedies that must be exhausted when LTD benefits are denied. See GMAC's Group Insurance Policy governed by First Unum Life Insurance Company at 42. When Tamondong's LTD claim was denied, she had sixty days to appeal and request a review. See id.
C. The Court Lacks Jurisdiction Over Tamondong's State Claims
When a plaintiff has not alleged diversity jurisdiction and her federal claims fail as a matter of law, courts generally decline to exercise supplemental jurisdiction over remaining state law claims. There is no reason to depart from that general rule here. Thus, Tamondong's state law claims for hostile work environment and wrongful termination are dismissed without prejudice.
See 28 U.S.C. § 1367(c)(3) (district court may decline to exercise supplemental jurisdiction over a claim if, inter alia, "the district court has dismissed all claims over which it has original jurisdiction"). See also Martinez v. Simonetti, 202 F.3d 625, 636 (2d Cir. 2000) (directing dismissal of state law claims when no federal claims remained).
See Adams v. Intralinks, Inc., No. 03 Civ. 5384, 2004 WL 1627313, at *8 (S.D.N.Y. July 20, 2004) ("In the usual case in which all federal law claims are eliminated before trial, the balance of factors to be considered under the [supplemental] jurisdiction doctrine — judicial economy, convenience, fairness, and comity — will point toward declining to exercise jurisdiction over the remaining state law claims.") (quotation and citation omitted).
V. CONCLUSION
For the foregoing reasons, Tamondong's claims against the individual defendants are dismissed. The Clerk of the Court is directed to close this motion (docket # 24) and this case.
SO ORDERED: