The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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BONNIE CLAIBORNE,
Plaintiff,
MEMORANDUM AND ORDER
- against - 17-CV-6692 (RRM) (ARL)
WINTHROP UNIVERSITY HOSPITAL,
Defendant.
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ROSLYNN R. MAUSKOPF, Chief United States District Judge.
On November 13, 2017, plaintiff Bonnie Claiborne commenced this pro se action
alleging claims under the Age Discrimination Employment Act (“ADEA”), Title VII of the Civil
Rights Act, Americans with Disabilities Act (“ADA”), and Family and Medical Leave Act
(“FMLA”) claims against her employer, defendant Winthrop University Hospital (“Winthrop”).
(Complaint (Doc. No. 1).) By order dated March 25, 2019, Judge Bianco adopted a Report and
Recommendation (“R&R”) by then-Magistrate Judge Brown, which recommended dismissing all
of Claiborne’s claims excluding her FMLA claims and granted Claiborne leave to file an
amended complaint. (Order Adopting R&R (Doc. No. 32).) Although Claiborne filed an
amended complaint, that pleading inexplicably omitted the FMLA claims and focused entirely
on claims that have already been dismissed. Winthrop has moved to dismiss and has correctly
noted the deficiencies in Claiborne’s amended pleading. However, since Judge Bianco found
that Claiborne had a valid FMLA claim and since it appears that the pro se plaintiff
misunderstood Judge Bianco’s order, the Court sua sponte grants Claiborne leave to file a second
amended complaint.
BACKGROUND
In her complaint, Claiborne alleges, among other things, that her employer violated her
rights by interfering with her use of FMLA leave despite having doctors’ notes and receiving
negative professional evaluations. (Compl. at 5–7.)1 She also alleges that she was prohibited
from saying “GOD” and threatened with termination if she continued to say “GOD” at work.
(Id. at 7–8.) On April 2, 2018, Winthrop moved pursuant to Federal Rule of Civil Procedure
12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted.
(Mot. to Dismiss (Doc. No. 14).) Judge Bianco2 referred the motion to Magistrate Judge Brown
for an R&R. (Order Referring Motion (Doc. No. 19).) On February 13, 2019, Magistrate Judge
Brown issued an R&R recommending that Judge Bianco grant Winthrop’s motion as to
Claiborne’s ADEA, Title VII, and ADA claims, without prejudice, and deny Winthrop’s motion
as the FMLA claim. (R&R (Doc. No. 23).) Magistrate Judge Brown agreed with Winthrop that
Claiborne had not provided any facts to support her ADEA claim, other than checking the ADEA
box on her form complaint and providing her date of birth. (Id. at 4.) Magistrate Judge Brown
also agreed that Claiborne had not sufficiently pleaded membership in a protected class or a bona
fide religious belief and therefore her Title VII claim failed. (Id. at 6.) In addition, Magistrate
Judge Brown found Claiborne’s ADA claim likewise failed because she had not sufficiently
pleaded facts alleging a disability within the meaning of the ADA, but merely made vague
references to her knee and wrist without more. She also did not plead any facts to show that
suffered adverse employment action because of her disability. (Id. at 7–8.)
However, Magistrate Judge Brown refused to dismiss Claiborne’s FMLA claim.
Magistrate Judge Brown found that Claiborne sufficiently pleaded an FMLA retaliation claim by
1 All page numbers refer to ECF pagination.
2 This case was reassigned on May 30, 2019, in light of Judge Bianco’s appointment to the Second Circuit.
alleging that she was not able to use FMLA leave despite having doctors’ notes and that she
received negative evaluations. (Id. at 9.) Magistrate Judge Brown also found that Claiborne had
sufficiently pleaded an FMLA interference claim through her allegation, which Magistrate Judge
Brown broadly construed, that Claiborne tried use her FMLA leave but it angered her superiors
even though she supplied them with doctors’ notes. (Id. at 10.)
Both parties objected to the R&R. (Winthrop’s R&R Objections (Doc. No. 25);
Claiborne’s R&R Objections3 (Doc. No. 31).) Winthrop objected to the R&R’s recommendation
that the FMLA retaliation and interference claims survive the motion to dismiss, arguing that:
(1) Claiborne admitted that her termination had nothing to do with FMLA, (2) negative
performance reviews cannot alone constitute an adverse employment action for the purposes of
an FMLA retaliation claim, and (3) the complaint could not have stated an FMLA retaliation
claim because it concedes that Winthrop granted Claiborne’s FMLA request. (See Winthrop’s
R&R Objections.)
Judge Bianco considered the objections and adopted Magistrate Judge Brown’s
“thorough and well-reasoned R&R in its entirety.” (Order Adopting R&R (Doc. No. 32).)
Emphasizing the lower standard for adverse employment action for retaliation purposes than
discrimination claims and Claiborne’s pro se status, Judge Bianco agreed with Magistrate Judge
Brown that the complaint had set forth a plausible FMLA retaliation and interference claim.
(Order Adopting R&R at 4.) Having dismissed Claiborne’s ADEA, Title VII, and ADA claims
without prejudice, Judge Bianco granted Claiborne leave to file an amended complaint in
accordance with the Order. He advised Claiborne that “an amended complaint completely
3 Judge Bianco described this document as a “response to the R&R, which the Court construes as objections.”
(Order Adopting R&R at 1.)
replaces the original. Therefore, plaintiff must include all claims against a proper defendant(s)
that she intends to pursue.” (Id. at 6.)
Claiborne timely amended her complaint on April 30, 2019. (Am. Compl.) The
amended complaint asserts employment discrimination claims pursuant to Title VII and the
ADA. (Am. Compl. at 1.) Apart from the information provided in the form complaint, the
handwritten portion of Claiborne’s amended complaint appears to be a response to the various
employment infractions listed in the timeline that Claiborne received in the meeting in which she
was terminated. (Am. Compl. at 6–13.) It does not assert an FMLA retaliation or interference
claim and does not repeat the FMLA allegations contained in her original complaint. Claiborne
utilized the form complaint in both of her complaints and appended to both handwritten
allegations and various employment and medical records.4 She indicates in her original
complaint that she is asserting an FMLA claim, (Compl. at 4), but does not in her amended
complaint, (see Am. Compl). Unlike the original pleading, which describes opposition that
Claiborne received from her supervisors regarding time off that she took for medical reasons for
which she had doctors’ notes, (Compl. at 5–7), the amended complaint focuses largely on the
claims that were already dismissed.
On May 14, 2019, Winthrop moved pursuant to Federal Rule of Civil Procedure 12(b)(6)
to dismiss the amended complaint for failure to state a claim upon which relief can be granted.
(Motion to Dismiss Amended Complaint (“Mot.”) (Doc. No. 42-2).) Winthrop sought dismissal
of Claiborne’s amended complaint in its entirety, arguing that she had failed to establish a prima
4 This Court’s review is limited to facts alleged in the complaint, documents attached to the complaint or
incorporated by reference in the complaint, and matters of which the Court may take judicial notice. See Chambers
v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). Because Rule Fed. Rule. Civ. P. 10(c) authorizes the
incorporation of a written instrument that is an exhibit attached to a pleading and makes the material thus
incorporated as part of the pleading, the Court may consider documents attached as exhibits to the complaint on a
motion to dismiss. See generally Ariel (UK) Ltd. v. Reuters Grp., PLC, 277 F. App’x 43, 45 (2d Cir. 2008).
facie case under either Title VII or the ADA. (Id.) Winthrop correctly notes that the amended
complaint fails to allege an FMLA claim, even though that is the only claim that survived its
prior motion to dismiss – “[t]he Amended Complaint, which completely supersedes Plaintiff’s
original Complaint (ECF No. 14), does not state a cause of action under the ADEA or FMLA . . .
Winthrop does not address any claims under the FMLA because they are not raised in the
Amended Complaint.” (Mot. at 16 n.2.)
DISCUSSION
Winthrop’s motion to dismiss the amended complaint is granted because Claiborne has
failed to allege facts to establish a prima facie Title VII or ADA claim. Her amended complaint
on these claims fails to cure the deficiencies in her complaint identified by Magistrate Judge
Brown and Judge Bianco. When a plaintiff proceeds pro se, the plaintiff’s pleadings should be
held “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see
Harris, 572 F.3d at 72 (noting that even after Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
the court “remain[s] obligated to construe a pro se complaint liberally”). “[A] pro se litigant in
particular ‘should be afforded every reasonable opportunity to demonstrate that [s]he has a valid
claim.’” Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000) (quoting Satchell v. Dilworth, 745 F.2d
781, 785 (2d Cir. 1984)).
Notwithstanding the liberal pleading standards granted to a pro se plaintiff, the Court
“need not argue a pro se litigant’s case nor create a case for the pro se which does not exist.”
Molina v. New York, 956 F. Supp. 257, 260 (E.D.N.Y. 1995). Where a pro se plaintiff has
altogether failed to satisfy a pleading requirement and the allegations in the complaint do not
raise a plausible claim to relief, dismissal is warranted. See Twombly, 550 U.S. at 558; see also
Rodriguez v. Weprin, 116 F.3d 62, 65 (2d Cir. 1997) (citation omitted). Moreover, a district
court generally should not dismiss a pro se complaint without permitting at least one opportunity
to amend. See Xian Yong Zeng v. Pompeo, 740 F. App’x 9, 10 (2d Cir. 2018) (summary order)
(citing Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). “[L]eave to amend should be
freely granted when justice so requires.” Pangburn v. Culbertson, 200 F.3d 65, 70 (2d Cir.
1999) (quoting Fed. R. Civ. P. 15(a)).
Here, Claiborne must be permitted the opportunity to amend her complaint in order to
replead her FMLA claim. Both Judge Bianco and Magistrate Judge Brown opined that
Claiborne could state a valid FMLA claim and yet her amended complaint alleges only Title VII
and ADA claims. Because Claiborne has already stated a valid FMLA claim but failed to
replead it in her amended complaint, justice dictates that she should be entitled to another chance
to amend.
Claiborne clearly misunderstood this Court’s Order on Winthrop’s motion to dismiss.
Judge Bianco explained that the amended complaint “completely replaces the original” and does
not supplement it and therefore she should include “all claims against a proper defendant(s) that
she intends to pursue.” (Order Adopting R&R at 6.) Claiborne is advised that her second
amended complaint completely replaces the original and amended complaints. Therefore, it
must include all FMLA claims that she intends to pursue.
Claiborne is advised, “to state a prima facie case of FMLA retaliation, the plaintiff must
show that (1) [s]he exercised rights protected under the FMLA; (2) [s]he was qualified for his
position; (3) [s]he suffered an adverse employment action; and (4) the adverse employment
action occurred under circumstances giving rise to an inference of retaliatory intent.” Casseus v.
Verizon N.Y., Inc., 722 F. Supp. 2d 326, 335–36 (E.D.N.Y. 2010) (citing Potenza v. City of N.Y.,
365 F.3d 168 (2d Cir. 2004)). Therefore, Claiborne’s second amended complaint should
describe the facts and circumstances that demonstrate that she exercised her rights under the
FMLA, that she suffered an adverse employment action, and should clearly describe the
circumstances that suggest a retaliatory intent behind her adverse employment action. Claiborne
must plead facts plainly and in chronological order that make out this claim. Claiborne cannot
simply refer to prior pleadings, she must reallege all relevant facts.
The elements of an FMLA interference claim are “1) that she is an eligible employee
under the FMLA; 2) that defendant is an employer as defined in FMLA; 3) that she was entitled
to leave under FMLA; 4) that she gave notice to the defendant of her intention to take leave; and
5) that she was denied benefits to which she was entitled under FMLA.” Geromanos v.
Columbia Univ., 322 F. Supp. 2d 420, 427 (S.D.N.Y. 2004). Should Claiborne file a second
amended complaint, she should describe the facts and circumstances plainly and in chronological
order regarding how she attempted to use her FMLA leave but faced adversity from her
supervisors. She should not allege facts regarding any claims apart from her FMLA claims
because her non-FMLA claims have been dismissed.
Any amended complaint shall be clearly labeled “Second Amended Complaint” and shall
bear the same docket number as this order, 17-CV-6692, and shall be filed within thirty (30) days
from the date of this Order.
CONCLUSION
For the reasons set forth above, the Court dismisses the amended complaint and grants
Claiborne thirty days’ leave to file a second amended complaint in accordance with this
Memorandum and Order. If Claiborne fails to file a second amended complaint within thirty
(30) days, this action shall be dismissed without prejudice, and judgment shall enter. The Clerk
of Court is respectfully directed to mail a copy of this Order to Claiborne and to note that mailing
on the docket sheet.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order
would not be taken in good faith and therefore in forma pauperis status is denied for the
purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
SO ORDERED.
Dated: Brooklyn, New York Roslynn R. Mauskopf
September 28, 2020
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ROSLYNN R. MAUSKOPF
Chief United States District Judge