OPINION AND ORDER
On Junе 10, 2009, plaintiff Tracy Lee Cohn (“plaintiff’) filed this action against KeySpan Corporation (“KeySpan” or “KeySpan Corporation”), Long Island Power Authority (“LIPA”), National Grid Corporate Services, LLC (“National Grid”), Donato Barrueco (“Barrueco”), Christopher Bishop (“Bishop”), Carol Buford (“Buford”), Timothy Gewert (“Gewert”), Anna L’Abbate (“L’Abbate”), Mari-lee Robertson (“Robertson”), and “Jane Does and John Does” (“the Doe defendants”) (collectively, “defendants”), alleging, inter alia, employment discrimination based on disability, a hostile work environment and retaliation in violation of the Americans with Disabilities Act, (“ADA”), 42 U.S.C. § 12101, et seq., the Rehabilitation Act of 1973 (“the Rehabilitation Act”), 29 U.S.C. § 792, et seg., and the New York State Executive Law § 296 (“NYSHRL”). Defendants now move pursuant to Rule 21 of the Federal Rules of Civil Procedure to dismiss the complain, as against KeySpan and LIPA; and pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Rule 12(b)(6)”) to dismiss the complain, in its entirety. For the reasons stated herein, defendants’ motion is granted in part and denied in part.
I. Background
A. Factual Background 1
1. The Parties
Since April 1998, plaintiff has been employed by KeySpan, LIPA and/or National Grid (collectively, “the Utility defendants”). (Complaint [Compl.], ¶ 27). Since July 16, 1998, plaintiff has been employed by the Utility defendants as a customer service representative. (Compl., ¶ 17). At ah relevant times, Barrueco, Bishop, Buford, Gewert, L’Abbate and Robertson (collectively, “the individual defendants”) were employed by the Utility defendants in a supervisory capacity and were plaintiffs supervisors in the customer relations department. (Compl., ¶¶ 19-25).
Plaintiff alleges that she is disabled as a result of a spinal injury, i.e. narrowing of discs at L4 and L5 and degenerative discs, she sustained on April 15, 1999 when she slipped and fell at a customer’s home while she was working as a meter reader for the Utility defendants (“the slip and fall accident”). (Compl., ¶¶ 13, 28-30). At plaintiffs request, she was placed on light duty following the slip аnd fall accident. (Compl., ¶ 28).
Plaintiff alleges that although she obtained a prescription for the use of a lumbar supporting chair at work on January 5, 2001, the supervisor to whom she submitted her request for the chair denied her request. (Compl., ¶¶ 31-32).
On January 31, 2001, plaintiff fell from her office chair (“the chair accident”), as a result of which she sustained a “serious injury.” (Compl., ¶ 33). Following the chair accident, plaintiff remained out of work until March 12, 2001, at which time she returned to work for half days for three (3) weeks. (Compl., ¶ 34). Plaintiff returned to full duty at work on April 9, 2001. (Compl., ¶ 35).
In or about June 2005, plaintiff left work to go to the emergency room after suffering “sharp pains in her back region.” (Compl., ¶ 36). Athough plaintiff returned to work the following day, she again left
In or about September 2005, plaintiff “submitted the required medical documents in order to receive reasonable accommodations [at work] as a result of her surgery.” (Compl., ¶ 44). Upon her return to work in September 2005, plaintiff was given a reasonable accommodation, insofar as she was permitted to take seven (7) to ten (10) minute breaks four (4) times per day to stretch and manipulate her back and such time would be excluded from her “availability status” on her performance evaluation. (Compl., ¶¶ 46, 63).
Plaintiff alleges that soon after the surgery, at the direction of Robertson, she submitted a Family Medical Leave Act (“FMLA”) application to KeySpan. (Compl., ¶ 43). Plaintiff missed work from September 21, 2005 through October 20, 2005. (Compl., f 45). According to plaintiff, “[u]pon returning to work, [she] supplied [KeySpan] with a doctor’s letter explaining her absence.” (Id.).
Plaintiff further alleges that as a result of the surgery, she missed the following periods from work: from January 19, 2006 through January 26, 2006; from April 24, 2006 through April 26, 2006; and from June 6, 2006 through June 9, 2006. (Compl., ¶¶ 47-49). According to plaintiff, upon returning to work after each absence, she supplied KeySpan with a doctor’s letter explaining her absence. (Compl., ¶¶ 47-49).
On or about August 2, 2006, Jane Sciaeca, from KeySpan, advised plaintiff that her request for FMLA accommodations had been approved, (Compl., ¶ 50), “contingent upon [plaintiff] having met the requisite hours worked.” (Affidavit of James G. Ryan [Ryan Aff.], Ex. B; Declaration of Linda M. Cronin [Cronin Deck], Ex. B). 2 In addition, Sciacca advised plaintiff that she was still required to provide medical documentation for each illness-related absence from work. (Ryan Aff., Ex. B; Cronin Deck, Ex. B).
During a meeting on August 24, 2006, attended by plaintiff, Robertson and a union representative Connie Fritzlo (“Fritzlo”), plaintiff was advised that her use of sick leave during the previous twelve (12) month period had been excessive, insofar as she was absent from work due to illness from September 21, 2005 through October 20, 2005, on December 2, 2005, from December 29, 2005 through December 30, 2005, from January 19, 2006 through January 26, 2006, from April 24, 2006 through
On September 14, 2006, at approximately 9:23 a.m., when plaintiff was returning from her “normal backstretch walk,” she experienced “severe pain” in her back radiating down her leg. (Compl., ¶ 51). Since Barrueco, plaintiffs immediate supervisor that day, was unable to speak with plaintiff, plaintiff contacted another supervisor, Shirley Josephs (“Josephs”), and informed her that she “could no longer continue to work.” (Compl., ¶ 53). According to plaintiff, with Josephs’s permission, she signed out of work at 10:10 a.m. and went directly home to bed. (Id.). Plaintiff alleges that Barrueco called her at home at 1:30 p.m. that day and threatened to dock her salary for the day unless she immediately returned to work because he did not believe her claim of back pain. (Compl., ¶ 54). According to plaintiff, Barrueco also threatened to address the matter with plaintiffs union and KeySpan’s management. (Compl., ¶ 55). Thereafter, plaintiff went to her doctor, who took x-rays revealing that her spine had not completely fused together causing her pain. (Compl., ¶ 56). The doctor gave plaintiff an orthopedic device to stimulate bone growth. (Id.).
Upon returning to work on September 18, 2006, plaintiff provided Robertson with a doctor’s note explaining her absence, to which Robertson responded: “We do not care about the note.” (Compl., ¶ 60). On that date, plaintiff also met with Barrueco, Bishop and Fritzlo, at which time she was advised that defendants would no longer accommodate her back stretches and walks into her schedule and that, although she would be permitted to continue taking such breaks, “her time away from her workstation * * * [would] now be factored into her unavailability status resulting in pоssible disciplinary action should she fail to reach her goals.” (Compl., ¶¶ 57-58, 62). According to plaintiff, at the meeting, Bishop also refused to acknowledge the medical report explaining her three (3) day absence from work. (Compl., ¶ 61). Plaintiff alleges that defendants’ failure to accommodate her disability was taken in retaliation for her utilization of sick time on September 14, 2009 and that, as a result, she was unable to meet her “conformance level,” i.e., the expected standard of time during which a customer service representative spends on the telephone during his or her shift, for which she was disciplined and threatened with the termination of her employment. (Compl., ¶¶ 59, 64, 68).
Plaintiff alleges that in or about September 2006, she complained to Steven Stone (“Stone”) at the New York State Department of Labor (“NYSDOL”) about KeyS-pan’s refusal to pay her for two (2) days of sick leave. (Compl., ¶ 65). On September 19, 2006, plaintiff again met with Barrueco and Bishop, who informed her that she would still not be paid for the two (2) days of sick leave. (Compl., ¶ 66). Plaintiff further alleges that during that meeting, Bishop informed her that he would no longer allow her to take time off from answering telephones so that she would perform her back stretches. (Compl., ¶ 67).
By e-mail dated September 26, 2006, Barrueco advised plaintiff that he noticed that some of her back stretches extended beyond the six (6) to eight (8) minute time period listed on her medical note and that plaintiff was to adhere to that time period. (Ryan Aff., Ex. B; Cronin Deck, Ex. B). Barrueco further advised plaintiff that her conformance numbers for the previous week had “fallen short” and suggested that plaintiff “customize [her] lunch schedule and split it up for 2-15 min breaks and 1-30 min break to accommodate the extra time [she] needed for [her] stretching * * *.” (Ryan Aff., Ex. B: Cronin Deck, Ex. B). Barrueco further noted that “[Booking back on [plaintiffs] previous times before procedures * * * changed it appeared] [plaintiff] ha[d] used 4 to 5 AUX times per day of 6-8 min to excersise [sic] [her] back and scored a 100% [conformance rating] * * (Ryan Aff., Ex. B; Cronin Deck, Ex. B).
Plaintiff alleges that on October 2, 2006, she complained to L’Abbate about the refusal to accommodate her disability and to pay her for the two (2) days of sick leave, but L’Abbate ignored her complaints and informed her that she would not be paid for the two (2) days in question. (Compl., ¶ 75).
Plaintiff further alleges that on October 5, 2006, she was forced “to waste” a vacation day because of the stress and harassment at work by Barrueco. (Compl., ¶ 76).
On October 9, 2006, plaintiff again complained to L’Abbate about the harassing conduct of, and hostile work environment caused by, Barrueco, claiming, inter alia, that Barrueco had reprimanded her for using the wrong color paper for an “appeal,” although other employees were using the same color paper due to the unavailability of the correct color of paper. (Compl., ¶ 78). According to plaintiff, she advised L’Abbate at that time that she intended to file harassment charges against Barrueco through her union and that Barrucco’s harassment was affecting her work performance. (Compl., ¶ 79). On that same date, plaintiff received a “Monthly [Performance] Feedback Form” (“MPF” Form) from Barrueco, indicating for the first time, inter alia, that plaintiff needed to improve her conformance and skills, (Compl., ¶ 80; Ryan Aff., Ex. B; Cronin Deck, Ex. B). The action plan set forth in that MPF Form indicates that in order to accommodate plaintiffs back condition, Barrueco offered to customize plaintiffs lunch schedule by allowing two (2) fifteen (15)-minute and one (1) thirty (30)-minute breaks for back stretches. (Ryan Aff., Ex. B; Cronin Deck, Ex. B).
On October 19, 2006, plaintiff again spoke with Stone from the NYSDOL about defendants’ refusal to accommodate her disability. (Compl., ¶ 81).
On November 13, 2006, plaintiff submitted a “Days Off Request Form” (“DOR” Form) requesting two (2) hours of vacation time on November 17, 2006, which was approved by Barrueco. (Ryan Aff., Ex. B; Cronin Deck, Ex. B).
Plaintiff alleges that on December 8, 2006, while she was taking an examination for an “SSO Operator” position in Hauppauge, which had been approved and scheduled by Bishop, she received a telephone call from Ron McGriskin (“McGriskin”), Bishop’s assistant, inquiring as to her whereabouts since she had not reported to the Melville CSC. (Compl., ¶ 87). According to plaintiff, as a result of the time she spent talking to McGriskin during the timed examination, the loss of сoncentration and the stress she experienced as a result of the call, she failed the examination. (Id,.). Plaintiff alleges that had she passed the examination and been promoted to an “SSO Operator” position, she would have received an increase in salary of a minimum of twenty thousand dollar’s ($20,000.00) a year. (Compl., ¶ 88).
Plaintiff alleges that on January 9, 2007, she again submitted a request and prescription for an orthopedic chair, which was approved on January 17, 2007. (Compl., ¶¶ 89, 91). Although plaintiff was given a catalog from which to choose an ergonomic chair for her needs on January 31, 2007, she did not receive the chair until March 6, 2007. (Compl., ¶¶ 92, 94).
On or about March 13, 2007, plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission (“EEOC”), alleging that since September 14, 2006, KeySpan discriminated against her in her employment based upon her disability, and retaliated against her, in violation of the ADA. (Compl., ¶¶ 7-8). Specifically, plaintiff complained of KeySpan’s failure to pay her for two (2) days that she took as sick leave in September 2006; the subsequent refusals to accommodate her disability, retaliation and harassment by Barrueco, Bishop, Robertson and others; and L’Abbate’s failure to act on her complaints of harassment through October 2006. (Affidavit of James G. Ryan [Ryan Aff.], Ex. B). The EEOC issued a right-to-sue letter on June 29, 2007 without rendering a determination on her charge. (Compl., ¶ 9; Ryan Aff., Ex. C).
Plaintiff alleges that as of January 2008, defendants refused to give her overtime work that she requested, in further retaliation for her complaints of harassment, as a result of which “her income [was decreased] by approximately $15,000 per annum.” (Compl., ¶ 95).
Plaintiff further alleges that on February 26, 2009, she was suspended for having shortages and/or overages in her cash drawer. (Compl., ¶ 96). According to plaintiff, she was the only еmployee suspended, notwithstanding that “other similarly situated employees” committed “similar acts.” (Compl., ¶¶ 96-97).
In addition, plaintiff alleges that the Utility defendants have condoned derogatory comments being made about her in instant messages between her supervisors and co-workers, which have caused her embarrassment, humiliation and stress. (Compl., ¶ 98).
B. Procedural History
On September 27, 2007, plaintiff filed a complaint against KeySpan, LIPA, National Grid and the Doe defendants in this
On June 10, 2009, plaintiff, represented by new counsel, commenced this action against defendants alleging, inter alia: (1) employment discrimination based on disability and failure to make reasonable accommodations to plaintiffs disability in violation of Sections 102(b)(5)(A) of the ADA, 42 U.S.C. § 12112(b)(5)(A) (first cause of action), (Compl., ¶¶ 100-111), and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (third cause of action), (Compl., ¶¶ 119-130); (2) retaliation in violation of the ADA (second cаuse of action), (Compl., ¶¶ 112-118); (3) a hostile work environment (fourth cause of action), (Compl., ¶¶ 131-139); and (4) employment discrimination based on disability in violation of the NYSHRL (fifth cause of action), (Compl., ¶¶ 140-143). Plaintiff seeks, inter alia, compensatory and punitive damages. (Compl., pp. 28-29).
Defendants now move pursuant to Rule 21 to dismiss the complaint as against KeySpan and LIPA, and pursuant to Rule 12(b)(6) to dismiss the complaint in its entirety.
II. DISCUSSION
A. Rule 21
Initially, defendants seek dismissal of plaintiffs claims against KeySpan and LIPA pursuant to Rule 21 of the Federal Rules of Civil Procedure on the basis that those defendants are not proper parties to this action since plaintiff was never employed by them. According to defendants, plaintiffs employment discrimination claims are “based on her alleged disability while employed at defendant National Grid and its predecessor [KeySpan Corporate Services LLC (“KCS”) ].” (Memorandum of Law in Support of Defendants’ Motion to Dismiss [Def. Mem.], p. 4; Affidavit of James Suridis [Suridis Aff.], ¶ 1).
Rule 21 of the Federal Rules of Civil Procedure provides, in pertinent part, that “[o]n motion or on its own, the court may at any time, on just terms, add or drop a party.” Rule 21 allows a court “to delete parties [from an action] that have no connection to the claims asserted,”
Jiao v. First International Travel, Inc.,
No. 03 Civ. 0165,
In deciding a motion to drop a party pursuant to Rule 21, the Court may consider affidavits filed by the defendants challenging the allegations against them in the complaint.
Jiao,
In support of their contention, defendants submit: (1) an affidavit from James Suridis, thе payroll manager in National Grid’s employee services department, indicating that at all relevant times, plaintiff was, and is, an employee of National Grid and its predecessor KCS and was never employed by KeySpan Corporation, “the former holding company for all KeySpan entities,” (Suridis Aff., ¶¶ 1, 3-4); and (2) an affidavit from Wanda Hord, LIPA’s director of human resources and administration, indicating that “to the best of [her] knowledge,” based upon her review of LIPA’s employment records, plaintiff was never employed by LIPA, which “is a corporate municipal instrumentality and political subdivision of New York State [that] has no ownership interest in KeyS-pan Corporation or its successor, National Grid.” 3 (Affidavit of Wanda Hord [Hord Aff.], ¶ 1). If plaintiff was, in fact, never employed by KeySpan Corporation or LIPA, plaintiff would have no basis to assert her employment discrimination and retaliation claims against those defendants.
In opposition, plaintiff submits certain employment documents indicating, inter alia, that she was an employee of “KeyS-pan,” and/or “KeySpan Corporate Services LLC,” (Exs. C-G), as well as a copy of her current employee identification badge containing the names of both LIPA and National Grid. (Ex. G; Plf. Aff., ¶ 6). Those exhibits, particularly when considered in connection with the apparent inconsistency between the Suridis and Hord affidavits regarding which KeySpan entity was the predecessor to National Grid as plaintiffs employer, are sufficient at this early stage in the litigation to preclude dropping KeySpan Corporation and LIPA as defendants in this action. If, following discovery, it is demonstrated that KeySpan Corporation and/or LIPA, in fact, have no connection to plaintiffs employment discrimination and retaliation claims, those defendants may renew their motion to drop them from this аction pursuant to Rule 21 prior to trial.
B. Rule 12(b)(6)
The standard of review on a motion made pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is that a plaintiff plead sufficient facts “to state a claim for relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly,
In deciding a motion pursuant to Rule 12(b)(6), the Court must liberally construe the claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff.
Goldstein v. Pataki,
The Court must limit itself to the facts alleged in the complaint, which are accepted as true; to any documents attachеd to the complaint as exhibits or incorporated by reference therein; to matters of which judicial notice may be taken; or to documents upon the terms and effect of which the complaint “relies heavily” and which are, thus, rendered “integral” to the complaint.
Chambers,
Since the EEOC right-to-sue letter is attached to the complaint, it is properly considered on this motion.
See Gregory v. Daly,
C. Individual Liability under the ADA and Rehabilitation Act
Individuals may not be sued in their individual or personal capacity under the ADA or Rehabilitation Act.
See Spiegel v. Schulmann,
D. ADA Claims
Exhaustion of administrative remedies аnd the timely filing of a complaint with the EEOC are preconditions to filing an ADA action in federal court.
See Curto v. Edmundson,
The ADA requires that a claim be filed in federal court within ninety (90) days of the plaintiffs receipt of a right-to-sue letter from the EEOC.
See
42 U.S.C. § 12117(a) (adopting the ninety (90)-day limitations period set forth in Title VII, 42 U.S.C. § 2000e-5(f)(i), for the ADA);
Johnson v. St. Barnabas Nursing Home,
“Absent sufficient evidence to the contrary, it is presumed that a plaintiff received his or her right to sue letter three days after its mailing.”
St. Barnabas,
Plaintiff timely filed her ADA claims in the 2007 action four (4) days prior to the expiration of the ninety (90) day period, i.e., on September 27, 2007. However, Judge Wexler subsequently dismissed the 2007 action without prejudice by order dated December 16, 2008, which was entered on the civil docket on December 23, 2008. The timely filing of a complaint subsequently dismissed without prejudice does not toll or suspend the ninety (90)-day limitations period.
Copeland v. Rosen,
The EEOC’s right-to-sue letter explicitly informed plaintiff of the ninety (90)-day limitation period and the consequence of her failure to meet it; plaintiff was, at all times, represented by counsel and never sought the appointment of counsel; there is no indication that the Court ever led plaintiff to believe that the ninety
Since, whether or not the ninety (90)-day limitation period was tolled during the pendency of the 2007 action, plaintiff did not timely re-file her complaint prior to the expiration of the ninety (90)-day limitation period, and she has not established that the ninety (90)-day period should be equitably tolled, or otherwise equitably avoided, the branch of defendants-motion seeking dismissal of plaintiffs ADA claims is granted and those claims (first, second and fourth causes of action) are dismissed with prejudice as time-barred. 8
E. Rehabilitation Act Claim against the Utility Defendants
Unlike ADA claims, exhaustion of administrative remedies is not a condition precedent to commencing a discrimination claim based upon disability against a recipient of federal funding pursuant to Section 504 of the Rehabilitation Act.
See, e.g. Rodriguez v. International Leadership Charter School,
No. 08 Civ. 1012,
To state a claim for discrimination based upon a failure to accommodate under the Rehabilitation Act, the plaintiff must allege: (1) that the defendant receives federal financial assistance and, thus, is subject to the statute; (2) that he or she is an individual with a disability within the meaning of the Rehabilitation Act; (3) that, with or without reasonable accommodation, he or she could perform the essential functions of the job; and (4) that the employer knew, or should have known, of his or her disability and failed to provide such reasonable accommodation.
See Stone v. City of Mount Vernon,
“The Twombly plausibility standard, which applies to all civil actions, * * *, does not prevent a plaintiff from ‘pleading facts alleged’ “upon information and belief’ where the facts are peculiarly within the possession and control of the defendant, * * * or where the belief is based on factual information that makes the inference of culpability plausible, * * (Citatiоns omitted).
Arista Records,
Thus, read as a whole, the complaint provides the Utility defendants with fair notice of what plaintiffs claim under the Rehabilitation Act is and the grounds upon which that claim rests.
See Arista Records,
F. NYSHRL Claim against the Individual Defendants
Since plaintiffs federal Rehabilitation Act claim remains, this Court retains sup
The NYSHRL makes it unlawful for an employer to discriminate on the basis of,
inter alia,
disability.
See
N.Y. Exec. Law § 296 (“Section 296”). An individual may be liable under the NYSHRL only if her or she is an “employer” under subsection (1) of Section 296, or if he she was an “aider or abettor” under subsection (6) of Section 296.
See Lopes v. Caffe Céntrale LLC,
Nonetheless, Section 296(6) provides that it shall be an unlawful discriminatory practice “for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or attempt to do so.” N.Y. Exec. Law § 296(6). The Second Circuit has held that individual liability may be imposed under the NYSHRL on a co-worker who “actually participates in the conduct giving rise to a discrimination clаim,” irrespective of whether that coworker possessed the authority to do more than carry out personnel decisions made by others.
Feingold v. New York,
To the contrary, plaintiffs allegations that Barrueco and Bishop actually participated in the alleged harassment, discrimination and retaliation, and that L’Ab-bate and Robertson ignored her complaints about Barrueco and Bishop, are sufficient at the pleadings stage to state a plausible claim for “aiding and abetting” liability under the NYSHRL. Accordingly, the branch of defendants’ motion seeking dismissal of plaintiffs NYSHRL claim against Barrueco, Bishop, L’Abbate and Robertson is denied.
III. Conclusion
For the reasons stated herein: (1) the branch of defendants’ motion seeking dismissal of plaintiffs ADA claims in their entirety as time-barred is granted and
The parties are directed to appear before me in my courtroom located at 100 Federal Plaza, Courtroom 1010, Central Islip, New York 11722, on June 18, 2010 at 11:30 a.m., with authority or persons with authority to resolve this action, for a settlement and/or scheduling conference. The parties are directed to engage in good faith settlement negotiations prior to the conference.
SO ORDERED.
Notes
. The factual allegations are taken from the complaint and are assumed to be true for purposes of this motion only. They do not constitute findings of fact by the Court.
. The fоllowing documents were filed by plaintiff with her EEOC charge in the administrative proceeding and, thus, for the reasons set forth below, are properly considered on this motion to dismiss: (1) a letter from Robertson to plaintiff dated August 29, 2006; (2) a "Monthly Performance Feedback Form" dated October 9, 2006; (3) a "Days Off Request Form” dated November 13, 2006; (4) a “Quality Assurance Form;" and (5) three (3) e-mails dated August 2, 2006, September 20, 2006 and September 26, 2006, respectively. Moreover, both parties submit these same documents in support of, and in opposition, to the instant motion and, thus, there is no prejudice to either side in considering these documents on this motion.
. The affidavits of Suridis and Hord appear somewhat inconsistent, insofar as Hord indicates that National Grid is, in fact, the successor of KeySpan Corporation, whereas Suridis indicates that KeySpan Corporation was merely the holding company of KCS, the KeySpan entity which was National Grid's predecessor. Thus, the affidavits themselves raise a question regarding whether KeySpan Corporation, the named defendant herein, is a proper party to this action.
. To the extent the affidavits and other exhibits submitted by the parties in support of, or in opposition to, defendants’ motion are submitted with respect to the branch of defendants' motion seeking dismissal pursuant to Rule 12(b)(6), as opposed to the branch of defendants' motion seeking to drop plaintiff’s claims against KeySpan and LIPA pursuant to Rule 21, those documents have not been considered in determining this branch of defendants’ motion.
. The ADA adopts the procedures for Title VII suits, 42 U.S.C. § 12117(a), and, thus, cases analyzing the filing requirements of Title VII are also applicable to ADA actions.
. Even assuming that the unsupported allegation of plaintiff’s counsel that plaintiff did not receive the right-to-sue letter until July 3, 2007, (Memorandum of Law in Opposition to Defendants' Motion to Dismiss Plaintiff's Complaint [Plf. Opp.], p. 9), is sufficient to rebut the "three-day presumption of receipt,” plaintiff was still required to file her ADA claims in this Court on or before October 1, 2007.
. Even assuming that the ninety (90)-day limitation period was tolled during the pendency of the action, plaintiff had only four (4) days following the dismissal of that action within which to re-file her ADA claims prior to the expiration of the limitation period.
Ocasio,
. In light of this determination, it is unnecessary to consider defendants' remaining contentions seeking dismissal of plaintiffs ADA claims on other grounds.
. As the NYSHRL claim is the only claim remaining against Buford, Gewert and the Doe defendants, plaintiff’s failure to amend the complaint to correct the deficiencies in her NYSHRL claim as against those defendants within thirty (30) days will result in the complaint being dismissed in its entirety with prejudice as against those defendants.
. For the sake of simplicity, the only claims remaining in this action are: (1) plaintiffs claim against the Utility defendants under the Rehabilitation Act (third cause of action); and (2) plaintiff’s NYSHRL claim (fifth cause of action) against all defendants except Buford, Gewert and the Doe defendants.