Castiblanco v. American Airlines, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JULIA I. CASTIBLANCO,

Plaintiff,

MEMORANDUM AND ORDER

v.

17-cv-5639(KAM)(RER)

AMERICAN AIRLINES, INC.,

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Julia Castiblanco (“Plaintiff”) is a former

Fleet Service Clerk who worked for Defendant American Airlines

(“Defendant”). Plaintiff filed the instant action on September

27, 2017, alleging that Defendant discriminated against her on

the basis of her age and disability and failed to provide a

reasonable accommodation for her disability in violation of the

Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101 et

seq. (“ADA”), the New York State Human Rights Law, N.Y, Exec. L.

§§ 290 et seq. (“NYSHRL”), and the New York City Human Rights

Law, N.Y.C. Admin. Code §§ 8-101 et seq. (“NYCHRL”).

Defendant moves to dismiss Plaintiff’s amended

complaint pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure on the basis that Plaintiff’s claims are time-

barred because Plaintiff did not file them within the applicable

limitations period. For the reasons set forth below, the Court

agrees with Defendant and dismisses Plaintiff’s claims, with

leave to amend to state a timely claim for discrimination in

accordance with this Memorandum and Order.

BACKGROUND1

I. The Parties

Plaintiff Julia Castiblanco (born August 16, 1956) is

a sixty-three-year-old woman residing in Queens, New York. (Am.

Compl. ¶ 9.) Defendant American Airlines is a major airline

based in Fort Worth, Texas. (Id. ¶ 11.) Plaintiff worked for

Defendant as a Fleet Service Clerk for almost twenty years.

(See id. ¶ 19.)

The parties’ relationship began in July 1993, when

Plaintiff was hired by Trans World Airlines (“TWA”), which later

merged with Defendant. (Id. ¶ 19.) On April 4, 2001, following

the merger, Defendant assigned Plaintiff to work as a Fleet

Service Clerk at Pittsburgh International Airport in Pittsburgh,

Pennsylvania. (Id. ¶ 20.)

The responsibilities of a Fleet Service Clerk included

assignments in both “ramp service” and “fleet service” (id. ¶

24), with specific tasks including loading and unloading cargo

1 In reviewing a motion to dismiss, the Court accepts as true all factual

allegations in the complaint. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-

56 (2007). The facts in this section are therefore derived primarily from

Plaintiff’s Amended Complaint. (See generally ECF No. 34, Amended

Complaint.) The Court also notes that the amended complaint inadvertently

numbers two paragraphs on page 5 as paragraph numbers 22 and 23. Because the

Court does not cite either of these incorrectly numbered paragraphs, and for

ease of reference, the Court will refer to all paragraphs as they are

numbered in the amended complaint.

from flights, de-icing planes, and prepping cabins for departure

(id. ¶ 21). Plaintiff remained in this position throughout her

employment with Defendant. (Id. ¶ 24.)

II. Plaintiff’s Treatment & Transfer to JFK

In June 2004, Plaintiff was diagnosed with breast

cancer. (Id. ¶ 27.) Plaintiff’s treatment required her to

undergo a double mastectomy, in which her lymph nodes were

removed. (Id.) Due to the effects of this procedure,

Plaintiff’s doctor recommended that she return to work with a

medical restriction limiting her lifting to no more than twenty

pounds. (Id.)

In December 2005, Plaintiff returned from her medical

leave. (Id. ¶ 33.) Rather than returning to Pittsburgh,

however, Defendant reassigned Plaintiff to LaGuardia Airport in

Queens, New York. (See id. ¶ 22.) Plaintiff provided Defendant

with a letter from her oncologist regarding the foregoing

medical restriction. (Id. ¶ 33.) The manager of the Fleet/Ramp

Service at LaGuardia consequently allowed Plaintiff to work in

the cabin service, with lighter loads. (Id. ¶ 34.)

In September 2006, Defendant reassigned Plaintiff from

LaGuardia to John F. Kennedy International Airport (“JFK”), also

located in Queens, New York. (Id. ¶ 23.) Defendant kept

Plaintiff in her role as a Fleet Service Clerk. (See id.) In

her new posting, Plaintiff was once again required to work in

ramp service and lift heavy baggage. (See id.)

III. Plaintiff’s First Medical Leave and Subsequent Transition

to Part-Time Employment

Plaintiff alleges that, at JFK, she “became a target

of management wherein she was meant to endure an environment

rife with constant ridicule and intense scrutiny by the

managerial staff.” (See id. ¶ 42.) Plaintiff describes several

such incidents of alleged workplace harassment in her amended

complaint, all of which occurred in 2008.

In April 2008, Anthony Gallo (“Gallo”), a Ramp Manager

(see id. ¶ 38), began yelling at Plaintiff in front of her co-

workers (id. ¶ 43). Plaintiff does not describe the impetus for

this interaction. She does, however, note that Gallo proceeded

to tell her that she should “find a new workstation” and that

“he didn’t want to see her there [presumably, on ramp service,]

because of her medical restrictions.” (Id.)

Plaintiff describes another undated incident involving

Gallo. (Id. ¶ 41.) Gallo reportedly informed Plaintiff that

she could not wear sneakers while working. (Id.) Plaintiff,

however, noticed that several other employees were wearing

sneakers but were not reprimanded. (Id.)

Gallo later referred Plaintiff to a Senior Specialist

in the Human Resources Department (“HR”), Tasha Brown (“Brown”),

for reassignment. (Id. ¶ 44.) Gallo reportedly “did not want

[Plaintiff] there,” presumably, working under his direction.

(Id.) Plaintiff spoke with her union, but the union did not act

or follow up on her behalf. (Id.) Brown subsequently offered

Plaintiff the option to work part-time or, alternatively, to be

placed on a sick leave of absence once all of Plaintiff’s sick

time and vacation time was exhausted. (Id.)

On September 11, 2008, Gallo ordered another manager

to retrieve Plaintiff’s company identification and escort her

out of the building. (Id. ¶ 38.) Plaintiff proceeded to the

training office, where she spoke with Mike Melbrook (a Fleet

Service Clerk), George Crozier (“Crozier”) (another Fleet

Service Clerk), and John Quinn (a union representative). (Id.)

All three recommended that Plaintiff accept an offer to work

part-time in the cabin service. (Id.) At the end of the day,

Plaintiff was unable to use her company ID to punch out. (Id.)

On September 12, 2008, Plaintiff attended a hearing,

which appears to have been with her union. (Id. ¶ 39.) At this

hearing, Plaintiff’s union similarly recommended that Plaintiff

accept a part-time position with Defendant due to her medical

restriction. (Id.) Plaintiff accepted this recommendation,

given her fear that she would lose her job and corresponding

medical benefits. (Id.) Plaintiff alleges that another

employee with an unspecified medical restriction was permitted

to work full-time “without fear of harassment or loss of job.”

(Id. ¶ 40.)

IV. Plaintiff’s Second Medical Leave and Subsequent Failure

to Accommodate and/or Termination

In April 2013, Plaintiff underwent a bunionectomy and

took another medical leave. (Id. ¶¶ 29, 47.) Plaintiff’s leave

was scheduled to last until April 2014. (Id. ¶ 50.) During

this leave, Crozier (who, as noted above, was another Fleet

Service Clerk) suggested to Plaintiff that she “retire,” as the

“job was not for her.” (Id. ¶ 47.) Crozier told Plaintiff that

Defendant would not be able to accommodate her and that she

should consider retiring. (Id. ¶ 49.)

During Plaintiff’s leave of absence, Brown (a Senior

Specialist in HR) also blocked Plaintiff from participating in

Defendant’s work assignment “bidding process” – through which

employees would bid to work in areas of their choosing – due to

her prior medical restriction, which pre-dated her bunionectomy.

(Id. ¶ 48.) This allegation appears to be a reference to

Plaintiff’s initial lifting restriction, which limited her to

lifting no more than twenty points.

In September 2013, Plaintiff attempted to return to

work. (See id. ¶ 51.) On September 9, 2013, Plaintiff reported

to Defendant to drop off medical clearance forms to facilitate

her return. (See id.) On September 13, 2013, Plaintiff placed

a call to Defendant to inquire about her start time for

September 16, 2013. (Id. ¶ 52.) Plaintiff was referred to Lisa

Arthur (“Arthur”), a manager, to discuss the matter further.

(Id.) Arthur informed Plaintiff that she could not return to

work, due to her medical restrictions. (Id.) Arthur also

stated to Plaintiff that she “was not aware of medical

restrictions and could not locate them in Plaintiff’s file.”

(Id.) The amended complaint does not attempt to further explain

or clarify these apparently incongruous statements.

In 2014, Plaintiff returned to work for a brief period

of time. (See id. ¶ 35.) There is some ambiguity as to the

exact date this occurred. The amended complaint states that

Plaintiff returned “in or about June 2014.” (Id.) Plaintiff’s

Charge of Discrimination with the Equal Employment Opportunity

Commission (“EEOC”),2 on the other hand, provides far more

detail. (See generally ECF No. 40-1, U.S. Equal Employment

Opportunity Commission Intake Questionnaire.)

According to the EEOC charge, Defendant allowed

Plaintiff to return to work “for 45 days[,] from April 2014 to

May 2014.” (Id. at 4.) Plaintiff “agreed that within the 45

days[,] [she] would see [her] oncologist and have an examination

2 As the Court explains in more detail below, “it is proper for the [C]ourt to

consider the plaintiff’s relevant filings with the EEOC . . . which [were

not] attached to the complaint, because [she] rel[ies] on these documents to

satisfy the [ADA’s] time limit requirements.” Holowecki v. Fed. Exp. Corp.,

440 F.3d 558, 565-66 (2d Cir. 2006).

to see if [her] medical restriction would be lifted.” (Id.)

But “[p]rior to having the chance to [meet with her oncologist],

[Plaintiff] was told not to come back [to work].” (Id.)

According to Plaintiff, she “was not given a reason as to why”

Defendant would not allow her to continue working. (Id.)

Defendant “just told [her that she] ran out of time to submit

[her] doctor’s evaluation. . . . [T]he manager just did not

allow [her] to continue to work[,] even though [the manager had

previously] agreed to let [Plaintiff] work for 45 days.” (Id.)

“After being out of work and contacting several

people” (id. at 5), Plaintiff spoke with Tanya Kelly (“Kelly”),

an Analyst in the Accommodations Department, to request

reasonable accommodations (Am. Compl. ¶ 35). Kelly informed

Plaintiff that she would try to find Plaintiff another position

with Defendant that would be more accommodating to Plaintiff’s

disability. (Id.) Plaintiff, however, received no response

until she mentioned the possibility of filing a complaint. (Id.

¶ 36.) Kelly then informed Plaintiff that there were no

available accommodating positions at JFK. (Id.) Plaintiff does

not identify when these accommodation conversations took place,

but she notably does not allege that any accommodation

conversations took place after 2014. The EEOC Charge, which

provides slightly more detail, identifies one conversation as

taking place in November 2015, but does not allege that

Defendant rejected her renewed requests for accommodation in

that or any later conversation. (EEOC Charge, at 8.)

V. Plaintiff’s EEOC Complaint

On May 12, 2017, Plaintiff filed a charge of

discrimination with the EEOC. (Am. Compl. ¶ 6; EEOC Charge, at

7.) Plaintiff’s charge alleged that Defendant (1) forced her to

transition to a part-time position in September 2008 and (2)

refused to allow her to return to work in September 2013. (EEOC

Charge, at 2.) Therein, Plaintiff also described her brief

return to work in April-May 2014, and listed her date of

termination as May 2014. (Id.)

Plaintiff’s amended complaint states that the EEOC

issued her a Right to Sue Letter on July 8, 2017, but the

amended complaint does not specify the disposition of her EEOC

charge. (Am. Compl. ¶ 6.) The Dismissal and Notice of Rights

letter itself, which is attached to Plaintiff’s initial

complaint and “incorporated . . . by reference” to her amended

complaint (id. ¶ 7), indicates that the EEOC dismissed

Plaintiff’s claims as untimely and informed Plaintiff of her

right to sue on June 29, 2017 (ECF No. 1, Complaint (“Compl.”),

at 7 (“Your charge was not timely filed with EEOC; in other

words, you waited too long after the date of the alleged

discrimination to file your charge.”)).

VI. Plaintiff’s Separation and General Release Agreement

On September 22, 2017, Plaintiff signed a “Separation

and General Release Agreement” with Defendant as part of her

settlement of a worker’s compensation claim arising out of an

on-the-job injury she sustained while exiting an employee bus in

2010.3 (Am. Compl. ¶¶ 28, 54.) By executing this agreement,

Plaintiff agreement to voluntarily retire from Defendant and

release all claims she held against Defendant in exchange for

$100. (Id. ¶ 55.) Plaintiff alleges that she “unknowingly

signed” the Separation and General Release Agreement only

because Defendant had “surreptitiously annexed” it to the

underlying worker’s compensation settlement documents. (Id. ¶

54.) Plaintiff claims to have first learned of the Separation

and General Release Agreement itself during the initial

conference in this matter before Magistrate Judge Ramon E.

Reyes, Jr. on January 23, 2018. (Id. ¶ 55.)

VII. Plaintiff’s Retirement Letters

In 2018, after entering into the Separation and

General Release Agreement, Plaintiff received two letters from

Defendant regarding her retirement from the company. (ECF No.

3 A copy of the Separation and General Release Agreement is attached to a

letter submitted by Defendant on January 23, 2018 (ECF No. 17, Enclosure,

Separation and General Release Agreement), and is expressly relied upon by

Plaintiff’s complaint as a basis for equitable tolling in this action (id. ¶

1 (relying on this agreement as a basis for equitable tolling)). However,

Plaintiff’s amended complaint describes the relevant context and terms of the

Separation and General Release Agreement, and the Court only refers to the

agreement itself for the helpful context of the date of its signing.

43-2, Exhibits to Plaintiff’s Memorandum of Law in Opposition to

Defendant’s Motion to Dismiss (“the 2018 Retirement Letters”).)

First, on July 23, 2018, Plaintiff received a letter from

Defendant congratulating her on her retirement and informing her

that, “[a]s a result of [her] decision to retire, [she] ha[d]

options to enroll in certain post-retirement medical benefits.”

(Id. at 1.) The letter further stated Plaintiff must enroll

“within thirty-one (31) days from [her] date of retirement” or

she would be placed into deferred status. (Id.) Second, on

August 16, 2018, Plaintiff received a letter from Defendant

informing her that Defendant “ha[d] extended certain benefits to

qualified former employees.” (Id.) These benefits arose from a

plan entitled, “Retirement Benefit Plan of American Airlines,

Inc. for Employees Represented by the Transport Workers Union of

America, AFL-CIO.” (Id.) This plan was frozen effective

November 1, 2012; “no additional benefits were earned on and

after that date.” (Id.) Plaintiff was, however, “100% vested

in the pension benefit that had accrued up to [her] date of

termination.” (Id.)

PROCEDURAL HISTORY

On September 27, 2017, Plaintiff filed a pro se

complaint alleging violations of (1) the Age Discrimination in

Employment Act of 1967, 29 U.S.C. §§ 621-634 (the “ADEA”) and

(2) the ADA. (Compl., at 1.) Plaintiff alleged that Defendant

failed to accommodate her disability and terminated her

employment. (Id. at 3.) Plaintiff listed her disability as a

“lifting restriction following cancer surgery,” and identified

her year of birth as 1956. (Id.)

On November 6, 2017, Defendant requested a pre-motion

conference in advance of its proposed motion to dismiss

Plaintiff’s complaint. (ECF No. 10, Letter Motion for Pre-

Motion Conference, at 1.) Defendant sought to dismiss

Plaintiff’s complaint pursuant to Rule 12(b)(6) of the Federal

Rules of Civil Procedure on the ground that Plaintiff failed to

timely exhaust her administrative remedies with respect to the

alleged discrimination. Defendant later revised its approach

and, relying on the Separation and General Release Agreement,

moved for summary judgment pursuant to Rule 56 of the Federal

Rules of Civil Procedure on the additional ground that Plaintiff

had surrendered her claims against Defendant by agreement. (ECF

No. 25, Motion for Summary Judgment.)

On July 9, 2018, before the parties finished briefing

Defendant’s motion to dismiss, Plaintiff acquired counsel and

requested leave to file an amended complaint. (ECF No. 30,

Letter Motion for Leave to File an Amended Complaint.)

Defendant opposed this request. (ECF No. 31, Opposition to

Motion for Leave to File an Amended Complaint.) The Court

acknowledged that Plaintiff provided no explanation regarding

her delay in seeking to amend the complaint or which, if any,

new facts or claims might be alleged in the amended complaint.

(ECF No. 32, Memorandum and Order, at 4.) The Court, however,

was mindful that Plaintiff had until that time proceeded pro se

and consequently granted Plaintiff leave to file an amended

complaint no later than August 13, 2018. (Id. at 5.)

On August 15, 2018, Plaintiff filed an amended

complaint. (See generally Am. Compl.) Plaintiff alleged

federal claims arising under the ADA.4 (Id. ¶ 1.) Plaintiff

also asserted state and local claims pursuant to the NYSHRL and

NYCHRL. (Id.) Plaintiff purported to bring these claims “for

those non-time barred periods [for] which [she] has fully

exhausted all administrative requirements thereunder, or [for]

those claims that are reasonably related or continuing in nature

to [her] underlying claims.” (Id.) Plaintiff further argued

that “[i]n any event[,] the exhaustion period should be

equitably tolled up until and including her discovery that

Defendant had her sign an agreement inconsistent with her

4 Plaintiff also alleges “disparate treatment” under the ADA and “related

acts.” Plaintiff does not specify which acts she refers to, but as she

alleges discrimination based on her age, the Court believes Plaintiff likely

refers to the ADEA. As this Memorandum and Order addresses the timeliness of

Plaintiff’s claims – and as the limitations period is identical for claims

arising under the ADA and ADEA, see, e.g., Valtchev v. City of New York, 400

F. App’x 586, 588 (2d Cir. 2010) (“The ADA, ADEA, and Title VII require

claimants to file a charge of discrimination or retaliation with the [EEOC]

within 300 days of the discriminatory or retaliatory act.”) – the Court need

not address both separately, as the analysis would be identical, and as

Plaintiff did not, in any event, state any claims under the ADEA.

understanding of to what it would pertain.” (Id.) Plaintiff

seeks as relief both damages and equitable relief. (Id.)

Defendant moved to dismiss Plaintiff’s amended

complaint pursuant to Federal Rule of Civil Procedure 12(b)(6)

on the grounds that it fails to state a claim upon which relief

could be granted. (ECF No. 40, Mem. of Law in Support of Motion

to Dismiss.) Defendant again argues that Plaintiff’s federal

claims are time-barred because Plaintiff filed her charge with

the EEOC more than three hundred days after she claims Defendant

discriminated against her on the basis of her disability and

age. (Id. at 1.) The Court agrees.

LEGAL STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure

permits a party to move to dismiss a complaint for failure to

state a claim upon which relief may be granted. In reviewing a

motion under Rule 12(b)(6), a court must “‘accept all factual

allegations in the complaint as true and draw inferences from

those allegations in the light most favorable to the

plaintiff.’” Tsirelman v. Daines, 794 F.3d 310, 313 (2d Cir.

2015) (quoting Jaghory v. N.Y. State Dep’t of Educ., 131 F.3d

326, 329 (2d Cir. 1997)). Despite this deference, a complaint

must still plead “enough facts to state a claim to relief that

is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). A claim is plausible “when the plaintiff

pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Although the court accepts as true all allegations in

the complaint, this tenet does not apply “to legal conclusions”

or “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements.” Id.

In addition to the complaint, the court may consider

documents that are incorporated by reference or are integral to

the complaint. Littlejohn v. City of New York, 795 F.3d 297,

305 n.3 (2d Cir. 2015); Holowecki v. Fed. Express Corp., 440

F.3d 558, 565–66 (2d Cir. 2006) (“‘[W]hen a plaintiff chooses

not to attach to the complaint or incorporate by reference a

document upon which it solely relies and which is integral to

the complaint, the court may nevertheless take the document into

consideration in deciding the defendant’s motion to dismiss,

without converting the proceeding to one for summary judgment.’”

(quoting Int’l Audiotext Network, Inc. v. Am. Tel. & Tel. Co.,

62 F.3d 69, 72 (2d Cir. 1995))), aff'd, 552 U.S. 389 (2008).

Courts routinely consider EEOC charges in reviewing motions to

dismiss federal discrimination claims which must have been

timely filed with the EEOC. See, e.g., Scott v. Rochester Gas &

Elec., 333 F. Supp. 3d 273, 276 (W.D.N.Y. 2018); Pfizenmayer v.

Hicksville Pub. Sch., No. 15-cv-6987(SJF)(SIL), 2017 WL 5468319,

at *4 (E.D.N.Y. Jan. 24, 2017); Collins v. City of New York, 156

F. Supp. 3d 448, 456 (S.D.N.Y. 2016); Francis v. Brennan, No.

15-cv-3726(JPO), 2016 WL 3093984, at *1 (S.D.N.Y. June 1, 2016);

Mauro v. N.Y.C. Transit Auth., No. 09-cv-4732, 2010 WL 1424009,

at *1 n.1 (S.D.N.Y. Apr. 9, 2010); Muhammad v. NYCTA, 450 F.

Supp. 2d 198, 205 (E.D.N.Y. 2006); James v. Federal Reserve Bank

of New York, 2005 WL 1889859, at *1 n.2 (E.D.N.Y. Aug. 8, 2005).

The Court therefore may also consider Plaintiff’s EEOC

charge, a copy of which is attached to Defendant’s motion to

dismiss, because it is referenced by the amended complaint and

is relied on by Plaintiff to satisfy the timely filing

requirements. See, e.g., Holowecki, 440 F.3d at 565 (“In

reviewing the Rule 12(b)(6) ruling, it is proper for this court

to consider the plaintiffs relevant filings with the EEOC and

the declaration that Robertson submitted to the district court,

none of which were attached to the complaint, because the

Holowecki plaintiffs' rely on these documents to satisfy the

ADEA's time limit requirements.”); Mauro v. NYC Transit Auth.,

No. 09-cv-4732(DLC), 2010 WL 1424009, at *1 (S.D.N.Y. Apr. 9,

2010) (stating that because plaintiff “relies on his EEOC charge

to satisfy the timely filing requirements . . . , the charge

will be considered on this motion [to dismiss]”).

DISCUSSION

I. Plaintiff’s Federal Claims

Plaintiff alleges that Defendant discriminated against

her on the basis of her age and disability, though she cites no

specific statutes pertaining to age discrimination. Plaintiff

further alleges that, to the extent her claims are time-barred,

the period for filing should be extended by operation of either

(1) the continuing violation doctrine or (2) equitable tolling.

Defendant argues that Plaintiff’s claims are clearly time-

barred, and that neither of the foregoing exceptions salvage her

untimely claims. The Court agrees with Defendant and finds

Plaintiff’s arguments unavailing.

a. Plaintiff’s Claims Are Time-Barred

The Court begins its analysis by considering whether

Plaintiff brought her claims in a timely manner. A plaintiff in

New York has 300 days from the date an ADA claim accrues to file

a discrimination charge with the EEOC. See Harris v. City of

New York, 186 F.3d 243, 247–48 (2d Cir. 1999); 42 U.S.C. §

12117(a) (incorporating by reference the filing procedures set

forth in 42 U.S.C. § 2000e–5). As Plaintiff filed her EEOC

complaint on May 12, 2017, any claims accruing prior to July 16,

2016 (300 days before May 12, 2017) are time barred. Boonmalert

v. City of New York, 721 F. App’x 29, 31 (2d Cir. 2018).

“To determine whether a claim was timely filed with

the EEOC, the incidents of employment discrimination . . . ‘must

be categorized as either discrete acts or continuing

violations.’” Krachenfels v. N. Shore Long Island Jewish Health

Sys., No. 13-CV-243(JFB)(WDW), 2014 WL 3867560, at *8 (E.D.N.Y.

July 29, 2014) (quoting Alers v. N.Y.C. Human Res. Admin., No.

06–CV–6131(SLT)(LB), 2008 WL 4415246, at *5 (E.D.N.Y. Sept. 24,

2008)). “A claim based upon a discrete act of discrimination .

. . ‘such as termination, failure to promote, denial of

transfer, or refusal to hire,’ is time-barred if the discrete

act occurred before the 300–day time period.” Id. (quoting

Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)).

This is the case even if a discrete act which accrued outside

the applicable limitations period is “related to acts alleged in

timely filed charges.” Id. (citing Morgan, 536 U.S. at 113).

“By contrast, a claim based upon discrimination . . . occurring

‘over a series of days or perhaps years,’ such as a hostile work

environment, is timely if even one contributing act occurred

within the 300–day time period.” Id. (citing Morgan, 536 U.S.

at 116-18). Such claims are “different in kind from discrete

acts” in that “[t]heir very nature involves repeated conduct.”

Morgan, 536 U.S. at 115. “The ‘unlawful employment practice’

[thus] cannot be said to occur on any particular day,” and the

corresponding claim for the entire period of harassment does not

accrue until the date of the last act composing the claim. Id.

Importantly, in determining whether a claim is timely,

the court must bear in mind that a claim accrues when the

plaintiff knows or has reason to know of the injury serving as

the basis for her claim. Harris, 186 F.3d at 247. “[I]t is

well settled that ‘the proper focus [in an employment

discrimination case] is on the time of the discriminatory act,

not the point at which the consequences of the act become

painful.’” Jordan v. Bates USA, 4 F. App’x 73, 76 (2d Cir.

2001) (citing Chardon v. Fernandez, 454 U.S. 6, 8 (1981))

(emphasis in original). Therefore, “‘the timeliness of a

discrimination claim is measured from the date the claimant

receives notice of the allegedly discriminatory decision, not

from the date the decision takes effect.’” Id. (citing O’Malley

v. GTE Serv. Corp., 758 F.2d 818, 820 (2d Cir. 1985)).

Plaintiff’s amended complaint sets forth two causes of

action for violations for the ADA. The amended complaint

appears to concede that Plaintiff failed to exhaust her claims

in a timely manner. (Am. Compl. ¶ 6.) Specifically, “Plaintiff

contends that despite the expiration of the period with which

she had to exhaust her administrative remedies, . . . her claims

should be equitably tolled due to her recent discovery that the

Defendant had her sign an agreement that was inconsistent with

her understanding as to what it would pertain.” (Id. (emphasis

added).) For the sake of completeness, however, the Court will

address whether each alleged adverse employment action could

serve as the basis for a timely ADA claim.

i. Transition to Part-Time Employment

Plaintiff alleges that in 2008, Defendant forced her

to transition to a part-time position due to her lifting

restriction. A transition in employment of this nature is a

discrete act which accrues at the time the plaintiff is notified

of the transition in employment. See, e.g., Kassner v. 2nd Ave.

Delicatessen Inc., 496 F.3d 229, 239 (2d Cir. 2007) (“[A]

completed act such as a discontinuance of a particular job

assignment is not of a continuing nature.”); Hurtgam v.

Lyndonville Central School, 446 F. App’x 385 (2d Cir. 2011)

(holding that a claim for transfer or reassignment runs from the

time the employee is informed of the pending transfer or

reassignment). In this case, the claim accrued in 2008, when

Plaintiff accepted her part-time position, and any claim based

on this conduct thus falls well outside of the applicable

limitations period.

ii. Hostile Work Environment

Plaintiff complains that Defendant subjected her to a

hostile work environment. Plaintiff’s allegations of this

nature all date to 2008 and involve the conduct of one manager,

Gallo. A claim of this nature accrues on the date of the last

act in furtherance of the allegedly discriminatory pattern or

practice. Here, the last act which would appear to constitute

part of this pattern occurred in 2008. Plaintiff’s claim

therefore accrued in 2008 and cannot not serve as the basis for

a timely ADA claim. See, e.g., McGullam v. Cedar Graphics,

Inc., 609 F.3d 70, 77 (2d Cir. 2010) (conducting “an

individualized assessment of whether incidents and episodes are

related” and dismissing a hostile work environment claim where

most recent relevant conduct occurred outside the applicable

limitations period).

Even if Plaintiff had alleged acts of this nature

which occurred later on in her employment, her claim would still

be untimely. Plaintiff left work in 2014, more than three

hundred days before filing her charge of discrimination with the

EEOC. She therefore could not allege any timely instances of

harassment in the workplace. See, e.g., Krachenfels, 2014 WL

3867560, at *1 (“Although plaintiff claims that she was denied

the ability to transfer to a different position while on leave

and within the limitations period, this has no bearing on

plaintiff’s hostile work environment claim, which requires

evidence of harassment in the ‘workplace.’”); Anderson v. Davis

Polk & Wardwell LLP, 850 F. Supp. 2d 392, 405 (S.D.N.Y. 2012)

(dismissing hostile work environment claims as untimely where

they “involved wholly different employees” and “happened at

least five years prior”); Drees v. Cty. of Suffolk, No. 06–CV–

3298(JFB), 2009 WL 875530, at *8 (E.D.N.Y. Mar. 30, 2009)

(finding no continuous violation where timely incidents

“involved different supervisors” and “there were no incidents

whatsoever for at least 5 years”).

iii. Denial of Request to Return to Work

Plaintiff complains that Defendant refused to allow

her to return from her medical leave in September 2013. Given

that Plaintiff later returned to work, it appears to the Court

that this claim should be cast as one for failure to

accommodate; specifically, failure to accommodate Plaintiff’s

request to return from medical leave. A claim of this nature is

a discrete act which accrues on the date the accommodation

request is rejected. Elmenayer v. ABF Freight Sys., Inc., 318

F.3d 130, 134–35 (2d Cir. 2003) (“[A]n employer’s rejection of

an employee’s proposed accommodation . . . does not give rise to

a continuing violation. Rather, the rejection is the sort of

‘discrete act’ that must be the subject of a complaint to the

EEOC within 300 days.”).5 Plaintiff’s request to return to work

was rejected in 2013, accrued then, and is therefore untimely.

5 Plaintiff clearly knew her 2013 claim had accrued; she filed (and later

withdrew) an EEOC charge shortly after this incident occurred. (See EEOC

Charge, at 6.). The Court also notes that Plaintiff’s amended complaint,

despite noting that Plaintiff later returned to work, could also be read as

casting this claim as one for wrongful termination. (See Am. Compl. ¶¶ 50-

iv. Extension of Leave/Unofficial Termination

Plaintiff alleges that Defendant allowed her to return

to work for a brief period of time in mid-2014, before

“unofficially and wrongfully terminat[ing]” her employment.

(Am. Compl. ¶ 53.) As the Court explained above, there is a

minor inconsistency between Plaintiff’s amended complaint and

EEOC charge regarding when Defendant informed her that she could

no longer continue working. The amended complaint states that

“in or about June 2014,” Plaintiff returned to work and sought

accommodations. (Id. ¶ 35.) Plaintiff then states, again

without providing dates, that she was “eventually inform[ed]”

that there were no accommodating positions available. (Id. ¶

36.) The EEOC charge provides helpful context. It lists

Plaintiff’s discharge date as May 2014, a date not necessarily

inconsistent with Plaintiff’s allegation that she returned to

work “in or about June 2014.” (EEOC Charge, at 2.) Moreover,

it indicates that upon departing from this brief period of

employment, Plaintiff was explicitly “told not to come back” to

work and that she “could no longer work” for Defendant due to

her disability. (Id. at 4.)

53.) But construing this as a claim for termination would not change the

underlying analysis because termination is also a discrete act which accrues

on the day it occurs. See, e.g. Krachenfels, 2014 WL 3867560, at *8.

In considering the timeliness of this claim, the Court

is mindful that what matters is the date of the discriminatory

act, not the date the consequences become painful. But whether

this is categorized as a denial of Plaintiff’s request for

reasonable accommodation, Elmenayer, 318 F.3d at 134–35, as a

change in Plaintiff’s job assignment, Kassner, 496 F.3d at 239,

as an unofficial termination, Krachenfels, 2014 WL 3867560, at

*8, or otherwise does not change the underlying analysis. The

act here is a discrete one which occurred in 2014 when Defendant

extended Plaintiff’s medical leave indefinitely and informed

Plaintiff that she would not be allowed to continue working due

to her medical restrictions. Any claim arising from this

incident accrued in 2014 and is therefore also outside the

applicable limitations period.

v. Conversations Regarding a Potential Return

The Court is cognizant that Plaintiff alleges that she

subsequently communicated with Defendant regarding a potential

return to work. These conversations could be cast as renewed

requests for accommodation. In determining whether any of these

requests could give rise to a separate cause of action, it is

important to consider whether the circumstances “reflect a

situation ‘in which the employer commits multiple acts, each of

which is independently discriminatory,’ or one ‘in which an

employee attempts to rely on either the ongoing effects of the

employer’s single discriminatory act or the employee’s efforts

to obtain reversal of that singular act of alleged

discrimination.’” Owens-Hart v. Howard Univ., 220 F. Supp. 3d

81, 93 (D.D.C. 2016) (quoting Tobin v. Liberty Mut. Ins. Co.,

553 F.3d 121, 131 (1st Cir. 2009)). In other words, while a new

request for the same accommodation might restart the statute of

limitations clock, a mere request for reconsideration of a prior

denial will not. See Del. State Coll. v. Ricks, 449 U.S. 250,

261 n.15 (1980).

It is not yet settled whether a new limitations clock

begins to run each time that a request for accommodations is

made anew and denied again. See Floyd v. Lee, 968 F. Supp. 2d

308, 324 (D.D.C. 2013) (collecting cases). Several courts of

appeals have held that this is the case, see id., while ours has

expressly reserved the question. Elmenayer, 318 F.3d at 135

(“[W]e do not decide what the effect would be if the employee

renews the request for an accommodation.”); see also

Giannattasia v. City of New York, 2011 WL 4629016, at *5

(E.D.N.Y. Sept. 30, 2011) (finding that denial of a renewed

request for accommodation constitutes a new claim). Courts have

also indicated that changed circumstances may play a significant

role in this analysis insofar as they provide more context as to

whether the request is really a new request for accommodation or

simply a request for reconsideration. Compare Tobin, 553 F.3d

at 131 (each renewed request to state a new claim “take[s] into

account the possibility of changes in either the employee’s

condition or the workplace environment that could warrant a

different response from the employer to renewed requests for

accommodation”) with Barrett v. Covington & Burling LLP, 979

A.2d 1239, 1249–50 (D.C. 2009) (“A plaintiff cannot extend the

limitations period by reiterating an identical request [for a

reasonable accommodation] that was previously denied . . . .

[But a] claim based on the denial of a new request, made in

light of changed circumstances, would not be time-barred.”).

In any event, the Court need not reach this question.

As an initial matter, Plaintiff does not assert that any such

additional requests for accommodation gave rise to separate

claims. Even if she had, the last time Plaintiff alleges having

any discussion with Defendant regarding her requests is November

2015. (See generally Am. Compl. (alleging no accommodation

conversations occurring after 2014); EEOC Charge, at 8

(indicating that Plaintiff “ask[ed] [her] employer for . . .

changes or assistance to do [her] job because of [her]

disability” in November 2015 but had not heard back from anyone

at Defendant since that time).) And, critically, Plaintiff does

not allege that Defendant actually denied any of her renewed

requests during that or any later conversation. As Plaintiff

alleges no denials of renewed requests for accommodation within

the limitations period, the Court cannot infer that any could

serve as the foundation for a timely discrimination claim.

vi. Separation and General Release Agreement

Plaintiff’s last and most recent allegation is that in

2017, Defendant surreptitiously attached a “Separation and

General Release Agreement” to a worker’s compensation settlement

relating to an unrelated, on-the-job injury Plaintiff sustained

in 2010. (Am. Compl. ¶ 54.) In signing this agreement,

Plaintiff agreed to voluntarily retire from Defendant. (Id. ¶

55.) Plaintiff expressly relies on the Separation and General

Release Agreement for the purpose of arguing that equitable

tolling or the continuing violation doctrine should apply to her

claims. (See id. ¶¶ 1, 6, 54-55, 72.) But reading her amended

complaint liberally, at least one paragraph appears to allege

that the signing of this agreement constituted a discriminatory

act. (Id. ¶ 72 (“Plaintiff suffered multiple instances of

discriminatory conduct over the period of her employment,

including . . . upon the unofficial termination of her

employment, Defendant, as Plaintiff contends, surreptitiously

attached a ‘Separation and General Release Agreement’ covering

claims that were not bargained for or related to her Worker’s

Compensation Settlement.”) The Court will therefore also

consider whether the allegations surrounding the Separation and

General Release Agreement give rise to a separate, and timely,

cause of action for discrimination.

It is settled that “[t]he existence of past acts and

the employee’s prior knowledge of their occurrence does not bar

[an] employee[] from filing charges about related discrete acts

so long as the acts are independently discriminatory and charges

addressing those acts are themselves timely filed.” Morgan, 536

U.S. at 113 (emphasis added). Thus, Plaintiff would not be

barred from bringing a discrimination claim based on this

agreement, even one related to the untimely discrete acts

addressed above, so long as she alleged some discriminatory

conduct in connection with the agreement. Plaintiff did not do

so. Instead, Plaintiff simply challenged the manner in which

she executed this agreement, a contract claim which, under these

circumstances, is not properly before the Court. (Am. Compl. ¶

1 (alleging that “Defendant presented Plaintiff with a

settlement agreement regarding her then Workers Compensation

claim but also annexed to [it] an additional agreement covering

matters unrelated to Plaintiff[’]s workers compensation

injury”); Id. ¶ 6 (alleging that “Defendant had [Plaintiff] sign

an agreement that was inconsistent with her understanding as to

what it would pertain”); Id. ¶ 54 (alleging that Defendant

“surreptitiously annexed [the agreement] to [Plaintiff’s]

Worker’s Compensation Section 32 Agreement”); Id. ¶ 55 (alleging

that Plaintiff’s agreement to retire was “a point Plaintiff

contends she never agreed [to or which was] presented under [a]

false light or misleading circumstances”); Id. ¶ 72 (alleging

that “upon the unofficial termination of [Plaintiff’s]

employment, Defendant . . . surreptitiously attached a

‘Separation and General Release Agreement’ covering claims that

were not bargained for or related to her Worker’s Compensation

Settlement”).) These allegations, as framed, do not give rise

to an independently discriminatory act, and consequently cannot

serve as the basis for a claim for discrimination.

b. No Exception Extends the Applicable Limitations Period

As the foregoing discussion established, Plaintiff’s

amended complaint fails to allege a timely claim of

discrimination. Plaintiff nevertheless argues that the Court

should consider her claims to be timely based on the operation

of either (1) the continuing violation doctrine or (2) equitable

tolling. The Court is not persuaded.

i. Continuing Violation Doctrine

First, Plaintiff argues that her time-barred claims

should be rendered timely by operation of the continuing

violation doctrine. Plaintiff appears to believe that this

doctrine “permits employees to recover for discriminatory acts

that fall outside the limitations period, as long as the

discriminatory acts are sufficiently related to the acts that

took place within the statutory period.” (Am Compl. ¶ 71.) But

this represents a misunderstanding of the scope of the

continuing violation doctrine.

Under the continuing violation doctrine, if a

plaintiff experiences a “‘continuous practice and policy of

discrimination, the commencement of the statute of limitations

period may be delayed until the last discriminatory act in

furtherance of it.’” Hudson v. W. N.Y. Bics Div., 73 F. App’x

525, 528 (2d Cir. 2003) (quoting Fitzgerald v. Henderson, 251

F.3d 345, 359 (2d Cir. 2001)). Application of the continuing

violation doctrine is disfavored, and courts are hesitant to

apply it absent a showing of compelling circumstances. Trinidad

v. New York City Dep’t of Corr., 423 F. Supp. 2d 151, 165 n.11

(S.D.N.Y. 2006); Stephens v. Hofstra Univ., No. 01-cv-

5388(DRH)(MLO), 2005 WL 1505601 *4 (E.D.N.Y. 2005). It is

therefore critical to bear in mind which categories of

allegations constitute continuing violations, and which only

amount to discrete acts of discrimination.

The continuing violation doctrine applies to “claims

that by their very nature involve[] repeated conduct.” Troeger

v. Ellenville Cent. Sch. Dist., 523 F. App’x 848, 851 (2d Cir.

2013) (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.

101, 115 (2002)). The classic example is a hostile work

environment claim, which “is composed of a series of separate

acts that collectively constitute one ‘unlawful employment

practice.’” Morgan, 536 U.S. at 117. Because the

discriminatory practice cannot be said to occur on a particular

day, and because each individual act of harassment may not be

actionable on its own, these claims are of a different nature

than discrete acts. Id. at 115 (citing Harris v. Forklift

Systems, Inc., 510 U.S. 17, 21 (1993)). This is why such claims

do not accrue until the last act in furtherance of the allegedly

discriminatory practice. See Hudson, 73 F. App’x at 528.

On the other hand, the continuing violation doctrine

does not apply to claims, or a series of claims, arising from

discrete acts of discrimination. See, e.g., Isbell v. City of

New York, 316 F. Supp. 3d 571, 586 (S.D.N.Y. 2018) (“‘[A] series

of discrete but related acts of discrimination [] [does] not

warrant application of the continuing violations doctrine.’”

(quoting Milani v. Int’l Bus. Machs. Corp., Inc., 322 F. Supp.

2d 434, 452 (S.D.N.Y. 2004))); Lipka v. Potter, No. 03-cv-381A,

2006 WL 839421, at *4 (W.D.N.Y. Mar. 28, 2006). “‘Discrete acts

such as termination, failure to promote, denial of transfer, or

refusal to hire are easy to identify,’ and are ‘not actionable

if time barred, even when they are related to acts alleged in

timely filed charges.’” Isbell, 316 F. Supp. at 586 (quoting

Morgan, 536 U.S. at 113-15). Nor does the continuing violation

doctrine apply to instances where the plaintiff continues to

feel the effects of a single, time-barred discriminatory act.

Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999);

Pulte Homes of New York LLC v. Town of Carmel, 736 F. App’x 291,

293 (2d Cir. 2018), as amended (June 13, 2018).

In her amended complaint, Plaintiff argues that the

Court should apply the continuing violation doctrine to extend

the time she had to file her untimely claims because she:

[S]uffered multiple instances of discriminatory conduct

over the period of her employment, including being demoted

to part-time and being forced to retire due to her

disability, as well as upon the unofficial termination of

her employment. Defendant [also] surreptitiously attached

a “Separation and General Release Agreement” covering

claims that were not bargained for or related to her

Worker’s Compensation Settlement.

(Am. Compl. ¶¶ 72-73.) This argument is not persuasive.

Plaintiff relies exclusively on a series of discrete acts in

arguing that the continuing violation doctrine should apply.

Claims based on such discrete acts are time barred even if

related to timely claims of discrimination. See Isbell, 316 F.

Supp. at 586. Plaintiff did allege a hostile work environment

claim but, as the Court explained above, this claim is also

untimely. The only timely allegation made by Plaintiff is that

Defendant wrongly induced her to enter into a contract, but even

if Plaintiff had alleged some discrimination in connection with

this agreement which was related to her untimely claims – which

she did not – this discrete act could not operate to save any of

her untimely allegations. It would only state a separate claim

of discrimination.

ii. Equitable Tolling

Second, Plaintiff argues that her claims should be

equitably tolled on the basis of the 2017 Separation and General

Release Agreement. Plaintiff alleges that:

[O]n or about January 23, 2018[,] during the initial

conference with [Magistrate] Judge Reyes in this matter,

Plaintiff [became] aware of the Separat[ion] and General

Release Agreement. The Agreement provided that Plaintiff

would agree to voluntarily retire from Defendant [American

Airlines], [for] consideration of $100.00, and release

Defendant [American Airlines] from all claims Plaintiff has

against Defendant [American Airlines], a point Plaintiff

contends she never agreed [to] or [was] presented under [a]

false light or misleading circumstances warranting the

equitabl[e] tolling of her claims against Defendant

[American Airlines].

(Am. Compl. ¶ 55.) This situation, even if true, does not

warrant equitable tolling of Plaintiff’s time to file her

otherwise dilatory claims.

“The filing deadline for [a] formal [EEOC] complaint

is not jurisdictional and, like a statute of limitations, is

subject to equitable tolling.” Zerilli-Edelglass v. N.Y. City

Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (citing Bruce v.

United States Dep’t of Justice, 314 F.3d 71, 74 (2d Cir. 2002));

see also, e.g., Predun v. Shoreham-Wading River School Dist.,

489 F. Supp. 2d 223, 229 (E.D.N.Y. 2007). “However, equitable

tolling is only appropriate ‘in [] rare and exceptional

circumstance[s],’ in which a party is ‘prevented in some

extraordinary way from exercising his [or her] rights.’”

Zerilli-Edelglass, 333 F.3d at 80 (quoting Smith v. McGinnis,

208 F.3d 13, 17 (2d Cir. 2000); Johnson v. Nyack Hosp., 86 F.3d

8, 12 (2d Cir. 1996)) (alterations in original).

“When determining whether equitable tolling is

applicable, a district court must consider whether the person

seeking application of the equitable tolling doctrine (1) has

‘acted with reasonable diligence during the time period she

seeks to have tolled,’ and (2) has proved that the circumstances

are so extraordinary that the doctrine should apply.” Id. at

80-81 (quoting Chapman v. ChoiceCare Long Island Term Disability

Plan, 288 F.3d 506, 512 (2d Cir. 2002)). In light of these

considerations, equitable tolling is “generally reserved for

cases (1) ‘where the plaintiff actively pursued judicial

remedies but filed a defective pleading during the specified

time period,’ (2) ‘where plaintiff was unaware of his or her

cause of action due to misleading conduct of the defendant,’ or

(3) ‘where a plaintiff’s medical condition or mental impairment

prevented her from proceeding in a timely fashion.’” Sporten v.

Bridgehampton Road Races, LLC, No. 13-cv-1730, 2014 WL 923265

(E.D.N.Y. Mar. 10, 2014) (citing Zerilli-Edelglass, 333 F.3d at

80–81 (internal citations and quotation marks omitted)).

Plaintiff has alleged no facts or circumstances that

would justify equitable tolling in this action. As an initial

matter, the Court notes that although Plaintiff raised equitable

tolling in her amended complaint, she does not apply any

analysis to her argument in her opposition brief. Plaintiff

cites to the corresponding legal principles but does not argue

how or why equitable tolling should apply in this instance, and

thus has not satisfied any of the equitable tolling factors.

Moreover, none of the facts alleged in the amended complaint

support the conclusion that Plaintiff acted with reasonable

diligence during the period she seeks to have tolled or that the

circumstances are so extraordinary as to justify relief.

Plaintiff did not pursue judicial remedies and filed no pleading

during the period she seeks to have tolled. Plaintiff does not

allege that she was misled by Defendant as to her cause of

action during this time. She argues only that she was misled in

signing the Separation and General Release Agreement, which

occurred well after the period for which she seeks tolling. And

Plaintiff does not allege any inability (medical or otherwise)

to file a complaint in a timely manner. There is, in short, no

basis for equitable tolling in this action, and Plaintiff’s ADA

claims based on the conduct alleged in the amended complaint are

therefore dismissed as untimely.

II. Plaintiff’s State and Local Claims

Defendant also moves the Court to dismiss Plaintiff’s

state and local claims as untimely. Plaintiff brings her

amended complaint pursuant to 28 U.S.C. § 1331 (Am. Compl. ¶ 2),

which confers upon courts federal question jurisdiction over

suits “arising under the Constitution, laws, or treaties of the

United States.”6 Plaintiff premised the Court’s jurisdiction

over her state and local claims exclusively on the Court’s

supplemental jurisdiction, which is conferred by 28 U.S.C. §

1367. (Am. Compl. ¶ 1 (“Plaintiff brings this action pursuant

to . . . [the NYSHRL and NYCHRL] under Pendent Jurisdiction.”);

6 Plaintiff also alleges that this Court has original jurisdiction pursuant to

28 U.S.C. § 1343 (civil rights and elective franchise) and, potentially, 42

U.S.C. § 1981 (equal rights under the law), 42 U.S.C. § 1983 (civil action

for deprivation of rights), and 42 U.S.C. § 1985 (conspiracy to interfere

with civil rights). (Am. Compl. ¶¶ 2-3.) “A plaintiff asserting subject

matter jurisdiction has the burden of proving by a preponderance of the

evidence that it exists.” Laake v. Turning Stone Resort Casino, 740 F. App’x

744, 744-45 (2d Cir. 2018). Plaintiff has not met this burden with respect

to these statutes. See Mian v. Donaldson, Lufkin & Jenrette Sec. Corp., 7

F.3d 1085, 1087 (2d Cir. 1993) (42 U.S.C. § 1981 requires an intent to

discriminate on the basis of race); Annis v. Cty. of Westchester, 136 F.3d

239, 245 (2d Cir. 1998) (42 U.S.C. § 1983 requires an action taken under

color of law); Mian, 7 F.3d at 1087 (42 U.S.C. § 1985(3) requires a

conspiracy); see also, e.g., K.M.B. Warehouse Distributors, Inc. v. Walker

Mfg. Co., 61 F.3d 123, 131 (2d Cir. 1995) (affirming district court’s

dismissal of claims based solely upon supplemental jurisdiction where the

plaintiff “did not actually base jurisdiction over its state law claims

against [defendant] on diversity of citizenship in either its complaint or

its argument to the district court,” but instead “premised jurisdiction

solely on supplemental jurisdiction under 28 U.S.C. § 1367”); Lamont v. City

of New York, No. 12-CV-2478(WFK)(JMA), 2014 WL 4829328, at *10 (E.D.N.Y.

Sept. 29, 2014) (dismissing state claims brought under supplemental

jurisdiction where, inter alia, the “[c]omplaint only assert[ed] federal

question and supplemental jurisdiction, and . . . [was] devoid of any

indication that Plaintiff [was] invoking diversity jurisdiction”); Basso Sec.

Ltd. v. Interstate Bakeries Corp., No. 01-cv-575(PCD), 2002 WL 32255352, at

*5 (D. Conn. Jan. 18, 2002) (declining to exercise supplemental jurisdiction

where plaintiff did “not plead diversity as a possible basis for jurisdiction

over the [state law] claims”).

id. at 16 (setting forth Plaintiff’s “State Pendent Causes of

Action” under the NYSHRL and NYCHRL).)

Where a court dismisses a plaintiff’s federal claims

on the pleadings, it must then determine whether it should

“exercise supplemental jurisdiction over [Plaintiff’s] state

[and local] law claims before addressing the merits of [the

Defendant’s] motions.” Eisenberg v. Cnty. of Nassau et al., No.

18-cv-1742(JMA)(SIL), 2019 WL 4247283, at *5 (E.D.N.Y. Aug. 30,

2019). District courts may exercise “supplemental jurisdiction

over all other claims that are so related to claims in the

action within such original jurisdiction that they form part of

the same case or controversy.’” Montefiore Med. Ctr. v.

Teamsters Local 272, 642 F.3d 321, 332 (2d Cir. 2011) (quoting

28 U.S.C. § 1367(a)). But the exercise of “[s]upplemental

jurisdiction ‘is a doctrine of discretion, not of plaintiff’s

right.’” Heckmann v. Town of Hempstead, No. 10-cv-5455, 2013 WL

1345250, at *2 (E.D.N.Y. Mar. 27, 2013) (quoting United Mine

Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966)). Therefore,

“[a] district court usually should decline the exercise of

supplemental jurisdiction when all federal claims have been

dismissed at the pleading stage[.]” Denney v. Deutsche Bank AG,

443 F.3d 253, 266 (2d Cir. 2006) (citation omitted); see also,

e.g., Brooklyn Heights Ass’n v. Nat’l Park Serv., 818 F. Supp.

2d 564, 571 (E.D.N.Y. 2011); 28 U.S.C. § 1367(c).

The Court has dismissed Plaintiff’s federal law claims

on the pleadings and, therefore, declines to exercise

supplemental jurisdiction over Plaintiff’s state and local

causes of action, and they are dismissed without prejudice.

Eisenberg, 2019 WL 4247283, at *5 (citing Kolari v. New York-

Presbyterian Hosp., 455 F.3d 118, 124 (2d Cir. 2006) (vacating

district court’s order over state law claims where all federal

law claims had been dismissed before trial and remanding with

instructions that state law claims be dismissed without

prejudice)); McGuire v. City of N.Y., No. 12-cv-814, 2015 WL

8489962, at *8 (E.D.N.Y. Dec. 8, 2015) (declining to depart from

the Supreme Court and Second Circuit’s general rule that “when

the federal claims are dismissed the state law claims should be

dismissed as well” (internal quotation marks and citations

omitted)).

III. Plaintiff’s Motion to Amend

Finally, Plaintiff requests that upon dismissal of her

claims, the Court grant her leave to file a second amended

complaint. Rule 15(a) of the Federal Rules of Civil Procedure

provides that courts “should freely give leave” to amend a

complaint “when justice so requires.” Fed. R. Civ. P. 15(a)(2).

“This permissive standard is consistent with [the Second

Circuit’s] strong preference for resolving disputes on the

merits.” Williams v. Citigroup Inc., 659 F.3d 208, 212–13 (2d

Cir. 2011) (citation omitted). Motions to amend, however,

“should generally be denied in instances of futility, undue

delay, bad faith or dilatory motive, repeated failure to cure

deficiencies by amendments previously allowed, or undue

prejudice to the non-moving party.” Burch v. Pioneer Credit

Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008); Monahan v.

N.Y.C. Dep’t of Corr., 214 F.3d 275, 283 (2000).

In her opposition brief, Plaintiff asks that “in light

of [Defendant’s] most recent letters confirming a retirement in

July 2018 [which] Plaintiff reports she was previously unaware

[of], to the extent [the Court] is inclined grant Defendant[’]s

motion to dismiss the [first amended complaint],” she be granted

leave to set forth facts regarding the 2018 Retirement Letters.

(Pl.’s Br. at 12.) Plaintiff appears to be suggesting that

these letters constitute the first definite notice she received

of her termination. But this is contradicted by the fact that

Plaintiff herself entered into an agreement prior to this date

in which she voluntarily agreed to resign from Defendant. It is

thus dubious whether Defendant’s discrete act of merely sending

the retirement letters could serve as the basis for a timely

claim for termination, given that they were sent after Plaintiff

both signed and, accepting her assertion as true, learned of her

agreement to retire from Defendant.

It is also unclear whether Plaintiff has

administratively exhausted her claims regarding the 2018

Retirement Letters. In the Second Circuit, “claims that were

not asserted before the EEOC may be pursued in a subsequent

federal court action if they are reasonably related to those

that were filed with the agency.” Soules v. Conn., Dep't of

Emergency Servs. & Pub. Prot., 882 F.3d 52, 57 (2d Cir. 2018)

(quoting Shah v. New York State Dept. of Civil Serv., 168 F.3d

610, 613 (2d Cir. 1999) (internal quotation marks omitted)).

“Subsequent conduct is reasonably related to conduct in an EEOC

charge if: [1] the claim would fall within the reasonably

expected scope of an EEOC investigation of the charges of

discrimination; [2] it alleges retaliation for filing the EEOC

charge; or [3] the plaintiff alleges further incidents of

discrimination carried out in precisely the same manner alleged

in the EEOC charge.” Id. (quoting Alfano v. Costello, 294 F.3d

365, 381 (2d Cir. 2002) (internal quotation marks omitted)).

The Court finds that Plaintiff’s allegations regarding

the 2017 Separation and General Release Agreement and the 2018

Retirement Letters, as alleged, would likely fall outside the

reasonably expected scope of the EEOC’s investigation into the

misconduct alleged in Plaintiff’s EEOC charge. The 2017

Separation and General Release Agreement arose in the context of

the settlement of a worker’s compensation claim regarding an

unrelated on-the-job injury Plaintiff sustained in 2010. It is

unlikely this agreement would have fallen within the reasonably

expected scope of the EEOC’s investigation, given that it

pertained to an entirely different injury and has no alleged

nexus to any discrimination. It is also unlikely that the

EEOC’s investigation would have reached the 2018 Retirement

Letters. Even assuming that the EEOC’s investigation looked

prospectively to mid-2018, the investigation would likely be

cabined to the period ending in 2017, when Plaintiff voluntarily

agreed to resign from Defendant. Allegations relating to the

2018 Retirement Letters are thus also not likely to fall within

the reasonably expected scope of the EEOC’s investigation.

Moreover, the Second Circuit has recently explained

that “[t]he ‘reasonably related’ doctrine is a limited, judge-

made exception to [the exhaustion] requirement, created to

accommodate practical concerns that are not present where a

plaintiff failed to file a timely suit on [her] original claim.”

Duplan v. City of New York, 888 F.3d 612, 624 (2d Cir. 2018)

(emphasis added); see also Kirkland v. Buffalo Bd. of Ed., 622

F.2d 1066, 1068 (2d Cir. 1980) (“The issuance of a ‘right to

sue’ letter . . . permit[s] a court to consider claims of

discrimination reasonably related to the allegations in the

complaint filed with the EEOC, ‘including new acts occurring

during the pendency of the charge before the EEOC.’” (emphasis

added)). Plaintiff has not alleged facts supporting any timely

discrimination claim, distinguishing her case from those in

which practical concerns would counsel in favor of allowing a

plaintiff to pursue her otherwise unexhausted claims.

In any event, in light of Plaintiff’s pro se status at

the time she filed the original complaint, and out of an

abundance of caution, the Court will grant Plaintiff limited

leave to amend her complaint. Plaintiff’s second amended

complaint should not replead any claims that the Court has

dismissed as untimely, specifically, claims regarding the

discrete acts addressed above which occurred before July 16,

2016. Plaintiff may, however, set forth sufficient facts

supporting her assertion that either (1) the surreptitious

annexation of the Separation and General Release Agreement in

2017 or (2) the mailing of the 2018 Retirement Letters

constitute independent, actionable acts of discrimination.

Plaintiff must further establish that any claims arising from

these instances, if any, are reasonably related to her prior

EEOC charge such that she would not need to separately exhaust

her administrative remedies before bringing them.

Conclusion

For the reasons stated above, the Amended Complaint is

dismissed in its entirety. Plaintiff’s ADA claims against

Defendant are dismissed with prejudice as untimely, to the

extent they rely on discrete acts of discrimination occurring

before July 16, 2016. Plaintiff may amend her complaint to

allege sufficient facts to state a valid and timely ADA claim in

accordance with this Memorandum and Order. Plaintiff’s state

and local law claims against Defendant are dismissed without

prejudice to the extent that Plaintiff alleges facts to

establish that the claims are timely. Plaintiff is granted

leave to file an amended complaint within thirty (30) days in

accordance with this Memorandum and Order.

SO ORDERED.

Dated: September 29, 2019

Brooklyn, New York

/s/

Hon. Kiyo A. Matsumoto

United States District Judge