Magee v. Nassau County Medical Center

• Decision Date: 13 November 1998
• Docket Number: No. CV 98-2296.,CV 98-2296.
• Citation: 27 F.Supp.2d 154
• Parties: Kathleen E. MAGEE, Plaintiff, v. NASSAU COUNTY MEDICAL CENTER, Defendant.
• Court: U.S. District Court — Eastern District of New York

27 F.Supp.2d 154

Kathleen E. MAGEE, Plaintiff, v. NASSAU COUNTY MEDICAL CENTER, Defendant.

No. CV 98-2296.

United States District Court, E.D. New York.

November 13, 1998.

COPYRIGHT MATERIAL OMITTED

Kathleen E. Magee, Uniondale, NY, pro se.

Owen B. Walsh, Nassau County Attorney, By Karen Ench, Deputy County Attorney, Mineola, NY, for Defendant.

MEMORANDUM AND ORDER

WEXLER, District Judge.

Presently before the Court is the motion of defendant Nassau County Medical Center ("NCMC") to dismiss plaintiff's Complaint alleging discriminatory employment termination and failure to rehire.¹ Defendant brings this motion, ostensibly pursuant to Federal Rule of Civil Procedure 12(b)(6), on the ground that plaintiff's Complaint fails to state a claim for which relief may be granted. For the reasons that follow, defendant's motion is granted in part and denied in part.

BACKGROUND

The Eastern District of New York makes available to pro se plaintiffs a form complaint to assist them in pursuing their employment discrimination claims. The form complaint provides a series of check boxes and a section where the plaintiff may set forth in narrative style the facts pertinent to her case, attaching additional pages as desired. In this case, plaintiff filed the form complaint and checked various boxes, but did not set forth any facts in the narrative section. Instead, she attached certain documents and correspondence.

The following allegations are gleaned from the checked boxes. Plaintiff states that she brings her claims under Title VII of the Civil Rights Act of 1964 and the Americans With Disabilities Act of 1990. She describes the discriminatory conduct as "failure to hire me," and "termination of my employment." She claims that these acts took place in June 1996. She asserts that she was discriminated against because of her race and disabilities, adding with respect to the latter, "my back problems and my carpal tunnel." Plaintiff added that she filed a complaint with DHR in June 1995, and received a right to sue letter on February 20, 1997.

The following documents were attached to plaintiff's Complaint:

(1) a letter from defendant to plaintiff, dated May 12, 1995, advising plaintiff that she was terminated from her position as a Custodial Worker as of May 11, 1995 because she had not returned to work after a job-related injury. The letter stated that the termination was pursuant to Section 71 of the New York Civil Service Law. The letter further provided that plaintiff could seek a medical examination within one year of the termination date and, if certified as physically fit, could apply for reinstatement;

(2) a copy of an administrative complaint bearing file number 16 G 95 4846, filed with DHR on July 17, 1995, in which plaintiff states that she was terminated on May 1, 1995. She charges defendant with terminating her in retaliation for having filed a previous complaint with DHR (apparently under file number 3500475) that charged defendant with "unlawful practices related to disabilities."² She states that defendant "refused to accommodate" her. The 1995 complaint also bears a recital that states, in pertinent part, "I also charge the above-named respondent(s) with violating Title VII of the Civil Rights Act of 1964, as amended (covers race, color, creed, national origin, sex relating to employment ....)";

(3) a right to sue letter from the Equal Employment Opportunity Commission, dated February 18, 1998, that further advised plaintiff that the evidence obtained in the DHR investigation did not establish a violation of Title VII. The right to sue letter was issued with respect to her administrative Title VII complaint bearing file number 16 G 95 4846; and

(4) a letter, dated June 26, 1996, from defendant to the Civil Service Commission, advising the latter that plaintiff could not return to her usual occupation apparently because the position would require her to do a "considerable amount of work above the shoulder level."³

Liberally reading the complaint and its attachments, the Court finds plaintiff to claim that her termination/failure to rehire was based on race, disability, and retaliation for having filed a prior administrative complaint. In response to plaintiff's allegations, defendant asserts that plaintiff fails to state a claim upon which relief may be granted and seeks dismissal of the complaint, purportedly pursuant to Rule 12(b)(6).

Defendant accompanies its motion with both an affidavit from its counsel and documentary evidence. Among defendant's supplemental documents is an administrative complaint filed by plaintiff with DHR in 1991 in which she charges defendant with racial discrimination in restricting her overtime work. Other documents indicate that, in 1994, plaintiff amended the 1991 administrative complaint to state that defendant knew she had an injury to her wrist and to charge defendant with "refusing to accommodate me for my documented disability and for retaliating against me for having opposed discriminatory practices in violation of New York State Human Rights Law." In 1994, plaintiff again amended the 1991 administrative complaint to add additional charges of retaliation.

Defendant also submits a letter from DHR, dated January 28, 1998, entitled "Determination and Order After Investigation," stating that DHR found no probable cause that plaintiff's termination was due to retaliation. In the letter, DHR characterizes plaintiff's 1995 administrative complaint as charging that "her employment was terminated in retaliation for having filed a prior complaint." The letter further notes that a "Probable Cause" determination was issued with respect to the 1991 administrative complaint. Finally, the letter states that plaintiff's termination took place 3.5 years after she filed the 1991 complaint with DHR, and ten months after the Probable Cause determination was issued.

DISCUSSION

I. Subject Matter Jurisdiction

A. General

Although defendant brings its motion under Rule 12(b)(6) seeking dismissal for failure to state a claim, defendant first contends that this Court lacks subject matter jurisdiction to hear plaintiff's claims because she failed to exhaust her administrative remedies. A motion challenging subject matter jurisdiction is properly brought under Rule 12(b)(1). A court faced with a motion to dismiss pursuant to both Rules 12(b)(1) and 12(b)(6) must decide the jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a decision on the merits and, therefore, an exercise of jurisdiction. Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir.1990); Sanger v. Reno, 966 F.Supp. 151, 159 (E.D.N.Y. 1997).

When considering a Rule 12(b)(1) motion, a court may consider affidavits and other materials beyond the pleadings themselves to resolve the jurisdictional question. Antares Aircraft L.P. v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir.1991), vacated on other grounds, 505 U.S. 1215, 112 S.Ct. 3020, 120 L.Ed.2d 892 (1992); Exchange Nat'l Bank of Chicago v. Touche Ross & Co., 544 F.2d 1126, 1130 (2d Cir.1976). A court must accept as true all material factual allegations in the complaint, but will not draw inferences favorable to the party asserting jurisdiction. Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir.1998); Atlantic Mut. Ins. Co. v. Balfour Maclaine Int'l, Ltd., 968 F.2d 196, 198 (2d Cir.1992). Hearsay statements contained in affidavits will not be considered. Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.1986).

B. Title VII's Exhaustion Requirement

Turning to the merits of defendant's jurisdictional argument, it is clear that "[a] district court only has jurisdiction to hear Title VII claims that either are included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is `reasonably related' to that alleged in the EEOC charge. This exhaustion requirement is an essential element of Title VII's statutory scheme." Butts v. City of New York Dep't of Housing Preservation and Dev., 990 F.2d 1397, 1401 (2d Cir.1993).

C. ADA's Exhaustion Requirement

An exhaustion requirement identical to that of Title VII applies to claims brought under Title I of the ADA.⁴ See 42 U.S.C. § 12117 (adopting for claims brought under Title I of the ADA the exhaustion requirement set forth for Title VII claims); Bent v. Mt. Sinai Med. Ctr., 882 F.Supp. 353, 355 (S.D.N.Y.1995) (administrative exhaustion requirement applies to Title I ADA claims); Finley v. Giacobbe, 827 F.Supp. 215, 219 n. 3 (S.D.N.Y.1993) (same).

The rule is different for claims brought pursuant to Title II of the ADA. Title II of the ADA bars discrimination by reason of disability by any public entity. See Pub.L. No. 101-36, §§ 201-03, 104 Stat. 337 (1990) (codifed in 42 U.S.C. §§ 12131-33). "Public entities" include, inter alia, any instrumentality of a state or local government. 42 U.S.C. § 12131(1). The Court takes judicial notice that NCMC is a public entity. See Castelli v. Nassau County Med. Ctr., 244 A.D.2d 379, 664 N.Y.S.2d 94, 95 (2d Dep't 1997) (noting that Nassau County Medical Center is a facility operated by the County of Nassau). An employee of a public entity may bring an employment discrimination claim under Title II of the ADA as well as under Title I. See Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816, 820 (11th Cir.) (thoroughly examining statutory language of Title II, interpretative regulations promulgated by Department of Justice, and prior case law, and concluding that "Title II of the ADA does encompass public employment discrimination"), cert. denied, ___ U.S. ___, 119 S.Ct. 72, 142 L.Ed.2d 57 (1998); Downs v. Massachusetts Bay Transp. Auth., 13 F.Supp.2d 130, 134 (D.Mass.1998) ("vast majority of courts" to consider question have held that Title II encompasses employment discrimination); Hernandez v. City of Hartford, 959 F.Supp. 125, 132 (D.Conn.1997) ("[t]he...