MEMORANDUM OF DECISION AND ORDER
On Junе 23, 2008, Carolyn Tully-Boone (“the Plaintiff’) commenced this lawsuit against North Shore-Long Island Jewish Hospital System (“North Shore”), Glen Cove Hospital (“the Hospital”), Barbara Backus, Carolyn Mueller, and Gloria Cohen (collectively “the Defendants”), asserting claims under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., the Health Insurance Portability Act (“HIPAA”), the Americans With Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and New York Executive Law § 290, et seq. (“New York Human Rights Law” or “NYHRL”). Presently bеfore the Court is the Defendants’ Fed.R.CivP. 12(b)(6) motion to dismiss the Plaintiffs complaint.
I. BACKGROUND
The Plaintiff, a registered nurse, was employed by North Shore in various staff and management nursing positions from 1981 until December of 2006. On or about September 11, 2006, the Plaintiff was transferred to the Hospital to work as a Quality Management Coordinator. At that time, the Plaintiff was advised that she would be subject to a six-month probationary period and a three-week oriеntation.
Shortly after her transfer, the Plaintiff experienced several personal problems that affected her physical and mental health. After being diagnosed as having anxiety and depression, the Plaintiff began to take medication that left her lethargic and drowsy. The Plaintiff also alleges that she had difficulty sleeping and this affected her ability to arrive at work on time at 8:00 a.m.
In September of 2006, the Plaintiff alleges that she advised Backus, the Assistant Director of Quality Management, and Cohen, North Shore’s Director of Human Resources, about her personal issues. On or about October 23, 2006, the Plaintiff avers that she told Mueller, the Director of Quality Management, and Backus that she needed time off because her condition was deteriorating and preventing her from completing work tasks. In the weeks that followed, the Plaintiff alleges that Mueller and Backus made a number of inquiries into the Plaintiffs medical conditions and the medications she was using.
On or about November 9, 2006, Backus had a discussion with the Plaintiff about her punctuality. The Plaintiff explained that complications from her medication made it difficult for her to arrive at work on time at 8:00 a.m. Backus agreed to push the Plaintiffs start time back to 8:30. The Plaintiff told Backus that she would like to extend her start time even further in light of her condition and that she was willing to stay later to ensure that her tasks were completed. On or about November 24, 2006, the Plaintiff received a memorandum from Backus regarding the fact that she had arrived fifteen minutes late for work on that day.
On or about November 29, 2006, the Plaintiff alleges that she initiated a meeting with Backus and Mueller at which time she requested medical leave as an ac
At the conclusion of the November 30th meeting, the Plaintiff was informed that, as a disciplinary action, she would be suspended without pay for one day. The Plaintiff alleges that she refused to sign the disciplinary warning until she was allowed to insert handwritten comments indicating that, among other things, she was still waiting for Mueller to respond to her request for medical leave. On or about December 4, 2006, the Plaintiff received an employment review from Backus. According to the Plaintiff, this review “included positive feedback as well as certain alleged deficiencies.”
During the week of December 4, 2006, the Plaintiff alleges that she initiated a meeting with Cohen to complain that North Shore had violated the FMLA by failing to “carry over” benefits she had accrued over the course of her tenure as a North Shore employee. During the meeting, the Plaintiff also inquired about her request for medical leave. However, Cohen indicated that she was unaware of any such request. On or about December 18, 2006, the Plaintiff met with Cohen again to discuss her benefits and the suspension. The Plaintiff alleges that when she told Cohen that her lateness was caused by her medical condition, Cohen “became hostile and abruptly ended the meeting.”
On December 20, 2006, the Plaintiff was terminated from her position as Quality Management Coordinator. Mueller and Backus presented the Plaintiff with a review prepared by Backus and was informed that she did not “pass” her orientation period. According to the Plaintiff, the review “extensively detailed nine performance areas with allеged deficiencies.”
On or about January 24, 2007, the Plaintiff discussed her termination with Rosemary Milano in Corporate Human Resources. The Plaintiff alleges that Milano was never informed about the Plaintiffs request for medical leave. On or about January 31, 2007, the Plaintiff spoke with Milano a second time. The Plaintiff alleges that, in this conversation, Milano told her that Mueller, Backus, and Cohen claimed that the Plaintiff had never requested a medical leave.
On June 23, 2008, the Plaintiff commenced this lawsuit alleging that: (i) she was discriminated against because of her disability in violation of the ADA and NYHRL; (ii) she was retaliated against because she requested reasonable accommodations for her disability; (iii) her request for reasonable accommodations were denied in violation of the ADA and NYHRL; (iv) the Defendants interfered with her rights under the FMLA; and (v) Backus, Mueller, and Cohen (“the Individual Defendants”) violated NYHRL by aiding and abetting the unlawful discrimination. The complaint also asserted a cause of action under HIPAA, but this claim has since been withdrawn by the Plaintiff. On August 25, 2008, the Defendants filed the instant motion to dismiss part of the Plaintiffs complaint.
A. 12(b)(6) Standard
In considering a 12(b)(6) motion to dismiss, “the Court must accept all of the plaintiffs factual allegations in the complaint as true and draw inferences from those allegations in the light mоst favorable to the plaintiff.”
Starr v. Georgeson S’holder, Inc.,
The Supreme Court has held that “a complaint in аn employment discrimination lawsuit [need] not contain specific facts establishing a prima facie case of discrimination under the framework set forth in
McDonnell Douglas Corp. v. Green,
B. The Defendants’ Motion to Dismiss
The Defendants argue that the complaint must be dismissed in part because: (i) they did not interfere with the Plaintiffs rights under the FMLA; (ii) the accommodations requested by the Plaintiff were unreasonable as a matter of law; (iii) the Plaintiff has failed to offer allegations that show Mueller and Cohen actually aided and abetted violations of NYHRL; and (iv) Backus could not have aided and abetted her own allegedly discriminatory acts.
1. The Plaintiffs FMLA Claim
“The FMLA gives eligible employees an ‘entitlement’ to twelve workweeks per year of unpaid leave ‘[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.’ ”
Sista v. CDC Ixis North America, Inc.,
As a threshold matter, the Court notes that, at this stage, the Plaintiff has offered allegations sufficient to show that she is entitled to FMLA leave. Courts have recognized that depression is a serious health condition within the meaning of the FMLA and the Plaintiff has made an adequate showing that she was unable to perform her job function becausе of her condition.
Spangler v. Federal Home Loan Bank of Des Moines,
The Plaintiff alleges that the Defendants interfered with her rights under the FMLA in several different ways. First, the Plaintiff contends that the Defendants failed to inform her about her rights under the statute once she made a request for medical leave. The Defendants counter that the Plaintiffs claim is foreclosed by the Second Circuit’s decision in
Sarno v. Douglas Elliman-Gibbons & Ives, Inc.,
In Samo, the Second Circuit found that the FMLA does not give an employee “a right to sue [an] employer for failing to give notice of the terms of the Act where the lack of notice had no effect on the employee’s exercise of ... any substantive right conferred by the Act.” Id. at 162 (emphasis addеd). Here, the Defendants’ failure to provide notice about the options available to the Plaintiff may well have affected her opportunity to exercise substantive rights under the statute. The Defendants could have, for example, apprised the Plaintiff of her entitlement to 12 weeks of leave or her right to intermittent leave under § 2612(b)(1). Accordingly, the Plaintiff can assert a plausible claim that, in failing to inform her аbout her FMLA rights, the Defendants interfered with those rights.
The Plaintiff also alleges that the Defendants interfered with her rights under the FMLA by failing to respond to her request for medical leave. Federal regulations require employers to respond to leave requests under the statute within two business days. 29 C.F.R § 825.208(a),(c). Here, the Plaintiff alleges she made her first request for medical leave on or about November 29, 2006. The Defendants never responded to this request or the Plaintiffs subsequent request to Cohen and the Plaintiff was terminated on or about December 20, 2006. The Defendants appear to argue that because the Plaintiff was fired before they could respond to her requests, they could not have interfered with her rights under the FMLA.
The Defendants rest their argument entirely upon
Ferguson v. Lander Co., Inc.,
The Court respectfully disagrees with the reasoning in
Ferguson.
The Court declines to find, as a matter of law, that an employer may evade liability for interfering with an employee’s FMLA rights simply because that employee is terminated before her employer can respond to her request for medical leave. Here, during the period from the Plaintiffs initial request for medical leave until her termination, the Plaintiff did not take the leave to which she may have been entitlеd because the Defendants failed to respond to her request. In this sense, the Defendants did not merely commit a “technical violation” of the regulations construing
To the extent that the complaint attempts to set forth an alleged violation of the FMLA for the Defendants’ failure to “carry over [the Plaintiffs] benefits,” it is clear that this claim must be dismissed because an employer’s failure to “carry over benefits,” does not constitute interference with an employee’s rights under the FMLA.
2. The Plaintiffs Reasonable Accommodation Claims
Both the ADA, 42 U.S.C. § 12112(b)(5)(A), and NYHRL, N.Y. Exec. Law § 296(3)(a), make it unlawful for an employer to refuse to make “reasonable accommodations to the known physical or mental limitations of an otherwise qualified” employee.
Brady v. Wal-Mart Stores, Inc.,
In the instant case, on a motion to dismiss, it would not be appropriate for the Court to decide whether the Plaintiffs requests for accommodation were reasonable. The Second Circuit has recognized that in the context of a motion to dismiss “[w]hile there may be claims requesting [accommodation] under the ADA that warrant dismissal as unreasonable as a matter of law,” many cases require “a fact-specific inquiry,” and are therefore not properly disposed of at the pleading stage.
Staron v. McDonald’s Corp.,
Here, the Plaintiff has alleged that she sought leave as an accommodation for her anxiety and depression and sought a later start time because the medication she was taking for her condition made it difficult for her to arrive at work on time at 8:30 a.m. The Plaintiff further alleges that she informed Backus that, if the Defendants would push back her start time, she was willing to stay later to complete her work. At this early stage, the Court is unwilling to find that such requests for accommodation were unreasonable as a matter of law. Accordingly, the Defendants’ motion to dismiss the Plaintiffs reasonable accommodation claims under the ADA and NYHRL is denied.
3. The Plaintiffs Aiding and Abetting Claims under NYHRL § 296(6)
NYHRL 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.’ ”
Feingold v. New York,
a. As to Carolyn Mueller
The Plaintiff alleges that Mueller asked the Plaintiff, on several occasions, about her medical conditions and thе medication she was taking; Mueller refused to consult a doctor’s note offered by the Plaintiff; Mueller never discussed the Plaintiffs leave request with Cohen as she promised to do; Mueller presented her with a negative employment review on the day she was fired; and Milano informed her that, after the Plaintiffs termination, Mueller claimed that the Plaintiff never requested medical leave. Viewing these allegations, as the Cоurt must, in the light most favorable to the Plaintiff, she could establish that Mueller participated in unlawful, discriminatory acts. Accordingly, the Plaintiff has sustained her burden to state a plausible § 296(6) claim against Mueller.
b. As to Gloria Cohen
The Plaintiff alleges that on or about December 4, 2006, she inquired of Cohen about the status of her leave request and Cohen informed her that she was unaware of any such request; when she told Cohen in a meeting that her lateness was caused by her medication, Cohen “became hostile and abruptly ended the meeting”; in January of 2007 after she was terminated, Milano told her that Cohen denied any knowledge of the Plaintiffs request for medical leave. The allegations that describe Cohen’s actual participation in unlawful acts are not as viable as those offered against Mueller. Nevertheless, if these allegations are true, the Plaintiff could establish that Cohen participated in acts that contributed to the Defendants’ alleged failure to accommodate her disability. Accordingly, the Court finds that, at this stage, the Plaintiff has alleged a plausible aiding and abetting claim against Cohen.
c.As to Barbara Backus
In order to discuss the Defendants’ argument in favor of dismissing the Plaintiffs aiding and abetting claim against Backus, a more thorough review of NYHRL is in order. NYHRL § 296(l)(a) makes it an unlawful discriminatory prаctice “[f]or an employer ... because of the ... disability ... of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.” The New York Court of Appeals has found that an employee may not be held individually liable under the statute “if he [or she] is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others.”
Patrowich v. Chemical Bank,
The Plaintiff alleges that North Shore and the Hospital, acting through the Individual Defendants, violated NYHRL 296(l)(a). As discussed above, the Plain
Indeed, certain Courts have cast doubt on the Second Circuit’s interpretation of § 296(6) in
Tomka.
Defendant argues that she should not be found liable as an aider and abetter because she could not have aided and abetted her own acts, see also, Hicks v. IBM,44 F.Supp.2d 593 , 600 (S.D.N.Y. 1999). The Second Circuit apparently disagrees. In Tomka, plaintiff “alleged that each of the individual defendants assaulted her and thereby created a hostile work environment”. Tomka,66 F.3d at 1317 . The court held that that allegation was “sufficient to satisfy § 296(6) [HRL’s aiding and abetting statute]”. Id. Perhaps the rationale behind the court’s decision was that each of the three individual defendants were aiding and abetting their fellow defendants’ violations. If this is true, individuals may not be liable under Tomka for aiding and abetting their own violations of the HRL. Perhaps the rationale behind the decision was that the employees’ actions imposed liability on the employer and therefore the employees were aiding and abetting the employer’s violation of the HRL, and not their own. We must wait for the Second Circuit to revisit the issue so that we may gain a firmer understanding of its rationale in Tomka and better understand the intended breadth of its application.
Perks v. Town of Huntington,
The Court is mindful that the
Tomka
interpretation of § 296(6) is not without controversy. Nevertheless, “until the Second Circuit revisits the issue,
Tomka
is the law in this circuit.”
Perks,
III. CONCLUSION
Based on the foregoing, it is hereby
ORDERED, that the Defendants’ motion to dismiss the Plaintiffs FMLA causеs of action is GRANTED as to the claim for their failure to “carry over benefits” and DENIED as to the claims for the Defendants’ alleged failure to notify the Plaintiff of her rights under the statute and their alleged failure to respond to her request for leave.
ORDERED, that the Defendants’ motion to dismiss the Plaintiffs reasonable accommodation claims under the ADA and NYHRL is DENIED, and it 'is further
ORDERED, that the Defendants’ motion to dismiss the Plaintiffs § 296(6) claims against the Individual Defendants is DENIED, and it is further
ORDERED, that the parties are directed to report to United States Magistrate Judge William D. Wall to set a discovery schedule.
SO ORDERED.