White v. Dupont Specialty Products USA, LLC

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

ALICIA WHITE,

Plaintiff,

v. DECISION AND ORDER

21-CV-539S

DUPONT SPECIALTY PRODUCTS, LLC,

Defendant.

I. Introduction

This is a removed employment discrimination action alleging violations of various

federal1 and New York State2 discrimination statutes by Plaintiff’s employer, DuPont

Specialty Products, LLC. As Plaintiff returned to work from medical leave, she alleges

enduring discrimination by Defendant (as described below) until her suspension and

eventual termination by Defendant in September 2018. Plaintiff then sued in New York

State Supreme Court, Erie County, on or about March 20, 2021 (Docket No. 1, Notice of

Removal, Ex. D).

Following removal to this Court (Docket No. 1), Defendant now moves to dismiss

the Complaint (Docket No. 5). For the reasons that follow, that Motion is granted in part.

This Court dismisses Plaintiff’s federal causes of action, declines to exercise

supplemental jurisdiction over her remaining New York State HRL claim, and remands

this case to New York State Supreme Court.

1Fair Labor Standards Act, 29 U.S.C. §§ 201-219 (“FLSA”), and Family Medical Leave Act,

29 U.S.C. § 2615 (“FMLA”).

2The New York State Human Rights Law, N.Y. Exec. Law § 296 (“HRL”).

II. Background

A. Facts as Alleged in the Complaint

According to the Complaint (Docket No. 1, Ex. D), Plaintiff seeks relief from her

employer for age, disability, veteran status, union conduct discrimination, and retaliation

in violation of the FLSA, the FMLA, and the New York State HRL (id. at page 1, ¶¶ 6-7,

5). Plaintiff was over 40 years old, a veteran of the United States Army, and disabled due

to herniated disks in her neck (id. ¶¶ 8, 9, 10). She worked for Defendant for about 25

years when she was terminated (id. ¶ 7).

In 2014, Plaintiff went out on disability leave for treatment of her neck (id. ¶ 11).

Upon her seeking to return to work (at an unspecified date), a new supervisor subjected

Plaintiff to testing, including psychological testing, ostensibly to determine her “fitness” to

resume work (id. ¶¶ 12-13). A Veterans Affairs doctor cleared Plaintiff for duty with a

short-term disability (id. ¶ 14). Defendant nevertheless kept Plaintiff on probationary

status which Plaintiff believes should have ended by 2016. She was in that status until

her suspension and termination in 2018. (id. ¶¶ 15-17.)

After her return, Defendant ordered Plaintiff to pull union stickers from lockers (id.

¶ 18) but Plaintiff challenged this order (id. ¶ 19). Later in 2018 Defendant began to write

up Plaintiff for numerous alleged (but unspecified) infractions that Plaintiff claims were

either “exaggerated and/or wholly fabricated” (id. ¶ 21). While her duties were still

performed during her suspension (and following her later termination) on these alleged

infractions, she believed her suspension and termination was a pretext for termination on

other grounds (her age, disability, veteran status, in retaliation for her opposition toward

Defendant’s illegal anti-union conduct in removing union stickers from lockers, and/or her

taking substantial Family Medical Leave) (id. ¶¶ 29-30).

On or about April 2018, Defendant demanded that Plaintiff enter into a “last

chance” agreement (id. ¶ 22), but she does not allege whether she complied. On or about

September 2018, Defendant suspended Plaintiff without pay (id. ¶ 23), although at that

time Plaintiff needed six more years of service to reach retirement age (id. ¶ 24). Plaintiff

alleges that, up to this period, her performance evaluations were good (id. ¶¶ 24-25). She

argues that Defendant’s actions were intentional and intended to harm her (id. ¶ 31).

Plaintiff alleges in the First Cause of Action violation of the FMLA (id. ¶¶ 33-39).

There, she claims that she exercised her statutory rights under that act when she took

leave for her herniated disks (id. ¶ 34). She alleges that Defendant then terminated her

(id. ¶ 35). She also claims that she is qualified for her former position, having performed

it for 25 years and having received good evaluations (id. ¶ 36). Upon information and

belief, Plaintiff claims that her former job was still performed (id. ¶ 37). She claims she

suffered economic and emotional harm from this violation (id. ¶ 38).

Plaintiff claims in her Second Cause of Action that Defendant discriminated against

her in violation of the New York HRL (id. ¶¶ 41-51). Asserting the elements under

New York Executive Law § 296, Plaintiff alleges that she was a member of protected

classes because she was older than 40 years old, an Army veteran, and disabled due to

her herniated disk (id. ¶¶ 42, 43-45). She claims that her termination was an adverse

action (id. ¶ 46). She again claims she was qualified for her former job and that it was

still being performed after her termination (id. ¶¶ 47, 48). Plaintiff concludes that she

alleged a prima facie case of discrimination, raising an inference of unlawful motives (id.

¶ 49). She contends that this inference is bolstered by Defendant hiring younger,

nondisabled, and non-veteran employees who were not terminated for allegedly

comparable infractions as hers (id. ¶ 50).

Plaintiff finally asserts in her Third Cause of Action that her termination was in

retaliation of Plaintiff refusing to comply with the illegal order to remove union stickers

from lockers, in violation of the FLSA (id. ¶¶ 53-60, 52, 18-21). She claims that Defendant

alleged infractions that she now contends are either cover or pretext for the real reasons

for her termination (id. ¶¶ 57-58, 21, 29). She argues that Defendant suspended (and

then terminated) her as punishment for her opposition to Defendant’s illegal acts against

unions (id. ¶ 59, see id. ¶¶ 18-21).

Plaintiff alleges the loss of her salary, bonuses, benefits, pension and incurring

out-of-pocket medical expenses. She also claims future pecuniary losses, emotional

pain, suffering, inconvenience, and other pecuniary losses. (Id. Injury and Damages,

Prayer for Relief at page 6.)

B. Proceedings and Motion to Dismiss (Docket No. 5)

On or about March 20, 2021, Plaintiff filed her verified Complaint against

Defendant in the New York Supreme Court, Erie County (Docket No. 1, Exs. D, E).

Defendant then removed this action to this Court (Docket No. 1, Notice of Removal).

On April 30, 2021, Defendant moved to dismiss (Docket No. 53). Responses were

due May 17, 2021, and reply by May 24, 2021 (Docket No. 6). After timely responses

and replies (Docket Nos. 7, 8), the Motion is deemed submitted without oral argument.

3In support of Defendant’s Motion, Defendant submits its Memorandum of Law, Docket No. 5, and

its Reply Memorandum of Law, Docket No. 8.

In response, Plaintiff submits her Memorandum of Law in opposition, Plaintiff’s Reply Memo. to

Defendant’s Motion to Dismiss, Docket No. 7 (“Pl. Memo.”).

III. Discussion

A. General Applicable Standards

1. Motion to Dismiss, Rule 12(b)(6)

Under Rule 12(b)(6), this Court cannot dismiss a Complaint unless it appears

“beyond doubt that the plaintiff can prove no set of facts in support of his claim which

would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d

80 (1957). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 554,

127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a Complaint must be dismissed pursuant to

Rule 12(b)(6) if it does not plead “enough facts to state a claim to relief that is plausible

on its face,” id. at 570 (rejecting longstanding precedent of Conley, supra, 355 U.S. at 45-

46); see Shultz v. Congregation Shearith Israel of City of N.Y., 867 F.3d 298, 302 (2d Cir.

2017) (applying Twombly to Title VII claim on Motion to Dismiss); Alexander v. Board of

Educ. of City of N.Y., 648 F. App’x 118, 120 (2d Cir. 2016) (summary Order) (applying

Twombly standard to FMLA retaliation allegation); Yanklowski v. Brockport Cent. Sch.

Dist., 794 F. Supp.2d 426, 427 (W.D.N.Y. 2011) (Larimer, J.) (same).

As summarized by commentators, 5B Charles A. Wright & Arthur R. Miller, Federal

Practice and Procedure § 1357, at 417 (Civil 3d ed. 2004), for purposes of a Rule 12(b)(6)

Motion, the Complaint is construed in the light most favorable to Plaintiff; its allegations

are taken as true; and all reasonable inferences that can be drawn from the Complaint

are drawn in Plaintiff’s favor.

To survive a Motion to Dismiss, the factual allegations in the Complaint “must be

enough to raise a right to relief above the speculative level,” Twombly, supra, 550 U.S. at

555; Hicks, supra, 2007 U.S. Dist. LEXIS 39163, at *5. As reaffirmed by the Court in

Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009),

“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’ [Twombly, supra, 550 U.S.] at 570 . . . . A claim has facial plausibility

when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.

Id., at 556 . . . . The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant

has acted unlawfully. Ibid. Where a complaint pleads facts that are ‘merely

consistent with’ a defendant’s liability, it ‘stops short of the line between

possibility and plausibility of “entitlement to relief.”’ Id., at 557 . . . (brackets

omitted).”

Iqbal, supra, 556 U.S. at 678 (citations omitted).

A Rule 12(b)(6) motion is addressed to the face of the pleading. The pleading is

deemed to include any document attached to it as an exhibit, Fed. R. Civ. P. 10(c), or any

document incorporated in it by reference, Goldman v. Belden, 754 F.2d 1059 (2d Cir.

1985).

Plaintiff now argues that Twombly and Iqbal sets pleading standards while

Defendant argues whether Plaintiff established a prima facie case, a trial evidentiary

standard (Docket No. 7, Pl. Memo. at fourth unnumbered page). She distinguishes the

pleading standard from a trial (or Motion for Summary Judgment) evidentiary standard

(id.). She is correct as to the difference in these standards, but Plaintiff at this threshold

still needs to allege facts that plausibly states a claim.

In considering such a motion, the Court must accept as true all the well pleaded

facts alleged in the Complaint. Bloor v. Carro, Spanbock, Londin, Rodman & Fass,

754 F.2d 57 (2d Cir. 1985). However, conclusory allegations that merely state the general

legal conclusions necessary to prevail on the merits and are unsupported by factual

averments will not be accepted as true. New York State Teamsters Council Health and

Hosp. Fund v. Centrus Pharmacy Solutions, 235 F. Supp. 2d 123, 126 (N.D.N.Y. 2002).

B. Unfair Labor Standards under the Fair Labor Standards Act and the

National Labor Relations Act

This Court initially considers whether Plaintiff states a claim under federal labor

law in her Third Cause of Action. There, Plaintiff alleges Defendant violated the Fair

Labor Standards Act, 29 U.S.C. § 216(b), in retaliating against her. Plaintiff now

withdraws her FLSA claim (Docket No. 7, Pl. Memo. at fifth unnumbered page),

Defendant’s Motion (Docket No. 5) to dismiss the Third Cause of Action for violation of

the FLSA and alleged unfair labor practice is granted.

Next, this Court considers the remaining federal question claim—Plaintiff’s FMLA

retaliation claim, alleged in the First Cause of Action—the basis for removal of this case.

Then, this Court decides whether to exercise supplemental jurisdiction over the New York

State HRL Second Cause of Action.

C. Family Medical Leave Act Claim

1. Applicable Standards, 29 U.S.C. § 2615

It is unlawful for an employer to discharge “or in any other manner discriminate

against any individual for opposing any practice made unlawful by” the FMLA, 29 U.S.C.

§ 2615(a)(2).

To allege a FMLA retaliation claim and apply the prima facie case analysis of

McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973),

Plaintiff needs to allege that she exercised her FMLA rights, that she suffered from a

materially adverse action, that she was qualified for her position, and that her job duties

were still being performed, Potenza v. City of N.Y., 365 F.3d 165, 168 (2d Cir. 2004)

(Docket No. 1, Ex. D, Compl. ¶ 33), and that the adverse action occurred under

circumstances that gives rise to an inference of retaliatory intent, id. (Docket No. 5, Def.

Memo. at 5 & n.3); De Figueroa v. N.Y., 403 F. Supp.3d 133, 156 (E.D.N.Y. 2019) (motion

to dismiss FMLA retaliation claim). If the Complaint “fails to show a ‘causal connection

between the protected activity and the adverse employment action’ the claim fails,”

Alexander v. Board of Educ. of City Sch. Dist. of City of N.Y., 107 F. Supp.3d 323, 328

(S.D.N.Y. 2015) (quoting Holt v. KMI-Continental, Inc., 95 F.3d 123, 130 (2d Cir. 1996);

Perry v. NYSARC, Inc., 424 F. App’x 23, 26 (2d Cir. 2011) (summary Order)).

“A plaintiff can demonstrate a causal connection (a) indirectly by showing

that the protected activity was followed closely by discriminatory treatment;

(b) indirectly through other evidence such as disparate treatment of fellow

employees who engaged in similar conduct; or (c) directly through evidence

of retaliatory animus. DeCintio v. Westchester County Med. Ctr., 821 F.2d

111, 115 (2d Cir. 1987),”

Carr v. Westlb Admin., Inc., 171 F. Supp.2d 302, 309 (S.D.N.Y. 2001).

A Complaint alleging a FMLA retaliation claim “need not plead specific facts

establishing a prima facie case of discrimination in order to survive a motion to dismiss,”

Peterson v. Long I. R.R., No. 10CV480, 2010 WL 2671717, at *2 (E.D.N.Y. June 30,

2010). That Plaintiff “need only show that [her] claims are plausible under Iqbal and

Twombly,” by “plead[ing] facts sufficient to state a claim to relief that is plausible on its

fact,” Harper v. N.Y.C. Hous. Auth., 673 F. Supp.2d 174, 178, 180 (S.D.N.Y. 2009); Smith

v. Westchester Cou., 769 F. Supp.2d 448, 469 (S.D.N.Y. 2011).

The FMLA has a two-year statute of limitations after the alleged ordinary violation,

but a claim of willful violation of the Act has a three-year limitation period, 29 U.S.C.

§ 2617(c)(1), (2) (Docket No. 5, Def. Memo. at 3). An FMLA violation is willful “if an

employer either ‘knew or showed reckless disregard’ for whether its conduct violated the

FMLA,” De Figueroa, supra, 403 F. Supp.2d at 154 (quoting Porter v. N.Y. Univ. Sch. of

Law, 392 F.3d 530, 531 (2d Cir. 2004) (per curiam). “However, if an employer acted

reasonably, or ‘unreasonably[] but not recklessly[,] in determining its legal obligation,’ then

the alleged violations should not be considered willful,” id. (quoting Mejia v. Roma

Cleaning, Inc., 751 F. App’x 134, 136 (2d Cir. 2018) (summary Order) (quoting in turn

McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 108 S.Ct. 1677, 100 L.Ed.2d 115

(1988))). Retaliation against an employee for exercising FMLA rights is almost “by

definition a ‘willful’ violation,” Offor v. Mercy Med. Ctr., 676 F. App’x 51, 54 n.2 (2d Cir.

2017) (summary Order); De Figueroa, supra, 403 F. Supp.3d at 154.

2. Parties’ Contentions

Defendant argues that Plaintiff’s FMLA claims are time barred (Docket No. 5, Def.

Memo. at 3-5). Plaintiff’s termination (her claimed adverse employment action) was some

time after her suspension in September 2018 (since she never returned to work following

her suspension). Plaintiff filed this action in New York Supreme Court in March 2021 and

Defendant concludes that the FMLA claims for her September 2018 suspension are time

barred (id. at 2 n.2, 4). Defendant denies that Plaintiff alleged willful conduct for the three-

year limitation period (id. at 3-4). It also contends that Plaintiff’s conclusory allegations

inadequately states a claim (id. at 4-5 (failing to assert intentional conduct), 5-6).

Defendant then argues the four years between Plaintiff’s return from FMLA leave and her

termination could not possibly give rise to a causal connection or inference of retaliatory

intent (id. at 6).

Plaintiff responds arguing that under fair notice pleading required by the Federal

Rules of Civil Procedure Rule 8(a)(2), she alleged actionable claims despite Defendant’s

“over-reading” of Twombly, supra, 550 U.S. 544, and Iqbal, supra, 556 U.S. 662, and the

plausibility requirement for pleadings (Docket No. 7, Pl. Memo. at fifth to eleventh

unnumbered pages). She does not, however, contest the timeliness of her claims.

In reply, Defendant argues that Plaintiff has not addressed dismissal of her FMLA

claims (Docket No. 8, Def. Reply Memo. at 2). Although Plaintiff argues that she now

alleges a Title VII claim (Docket No. 7, Pl. Memo. at fifth unnumbered page), Defendant

counters that Plaintiff is not entitled to any relief under Title VII, 42 U.S.C. § 2000e,

because she never sued under that act and failed to exhaust her administrative remedies,

the predicate for suit under Title VII (Docket No. 8, Def. Reply Memo. at 5-6).

3. FMLA Retaliation and Timing of Claims

Plaintiff has not addressed the timeliness of her FMLA claims; instead, she focuses

on the pleading standard and whether she alleged New York State HRL or Title VII claims

(cf. Docket No. 7, Pl. Memo.). Plaintiff barely acknowledges her FMLA claims.

The appropriate limitations period under FMLA depends upon whether Plaintiff

alleged willful conduct by Defendant in retaliating against her for exercising her leave

rights. Willful conduct has a three-year limitations period (or running to September 2021

from her September 2018 suspension). If Plaintiff alleges willful conduct, her Complaint

would be timely. Otherwise, ordinary FMLA retaliation has a two-year limitations period

and the Complaint would be time barred.

a. Allegation of Willful Conduct

The Complaint here concludes Defendant engaged in willful conduct (Docket

No. 1, Ex. D, Compl. ¶ 38; see also id. ¶ 31 (Defendant’s actions were intentional)) but

does not allege facts supporting that conclusion. As unsupported conclusory allegations,

this Court does not accept Plaintiff’s averments as true, N.Y.S. Teamsters Council, supra,

235 F. Supp.2d at 126. Furthermore, Plaintiff now does not argue the timeliness of her

claims or suggest willful conduct.

Plaintiff has not alleged Defendant acted willfully or identified willful conduct to

justify a three-year limitations period. She does not plead enough facts to state plausibly

any willful conduct, thus the three-year limitations period is unwarranted.

Giving the Complaint a generous reading required under Rule 12(b)(6), see Koppel

v. 4987 Corp., 167 F.3d 125, 138 (2d Cir. 1999), and taking all reasonable inferences

from the Complaint, one potential ground for willful conduct was assigning Plaintiff (an

over twenty-five-year employee of Defendant) to probationary status when she returned

from FMLA leave. She returned from leave to what became a permanent probationary

status, without alleging what that status included. She also did not allege that this

probationary assignment was willful.

Probationary employment usually means that the employee must prove they are

able to perform the job to continue employment, see Black’s Law Dictionary at 1202

(“probation”) (6th ed. 1990); see also, e.g., Hopkins v. Consolidated Edison Co. of N.Y.,

Inc., No. 87 CIV. 6947, 1988 WL 96090, at *1 (S.D.N.Y. Aug. 19, 1988) (defining “on-trial”

employee as an employee who is in first six months of probationary employment with

defendant company).

Here neither party alleged the scope of DuPont Specialty’s probationary

employment or whether an experienced employee could be placed on probation. Plaintiff

has not alleged any difference between her earlier employment with Defendant and her

post-leave probationary employment. She also did not attribute the subsequent alleged

infractions to her probationary status. This Court cannot determine on this record whether

this placement is willful.

Presumably, probationary status would allow Defendant to terminate the

probationary employee with or without cause. She alleges cause for her termination

despite disputing the legitimacy of that cause (see Docket No. 1, Ex. D, Compl. ¶¶ 29-30,

35). Plaintiff, however, has not alleged the consequences for assignment to probationary

status or established willfulness.

Another possible example of willfulness is hindering or denying Plaintiff FMLA

leave. Although she alleges termination for taking “a substantial amount of FMLA leave”

(id. ¶ 30), Plaintiff does not claim that she sought further FMLA leave, that Defendant

impeded her from claiming that leave, or Defendant punished Plaintiff for her taking FMLA

leave.

In De Figueroa, the court held that the three-year limitations period for willful

conduct applied because retaliation against an employee for exercising FMLA rights “‘is

almost by definition a “willful” violation,’” 403 F. Supp.3d at 154 (quoting Offor, supra,

676 F. App’x at 54 n.2). There, Plaintiff Desiree De Figueroa alleged that the individual

defendants exhibited reckless disregard for their obligation to refrain from retaliating

against Plaintiff for requesting FMLA leave. De Figueroa alleged a series of incidents

showing individual defendants’ resistance to FMLA leave and allegations of retaliatory

conduct for her requests for that leave. Id. at 143-44. Defendant John Gergen, the

undergraduate biology director at the State University of New York at Stony Brook,

expressed his belief that employees in his department (including De Figueroa) should not

take FMLA leave, becoming openly hostile to De Figueroa and other employees seeking

leave, id. at 143, 144. After Gergen learned that De Figueroa told another employee abut

FMLA procedures, Gergen assigned De Figueroa to tasks that were beyond the

responsibilities of her position (such as distributing 1,300 books throughout the biology

department), id. at 144. Defendants allegedly retaliated by falsely accusing De Figueroa

of forging her medical certification, altering her job responsibilities, denying her a

promotion and a discretionary bonus, and negatively evaluating her. Id. at 145, 154. The

court found that, if taken under these circumstances, these actions rose to an inference

of retaliation, would exhibit reckless disregard of Defendants’ obligations under the Act,

and thus the three-year limitations period applied. Id. at 154-55.

Contrast the sparse facts Alicia White asserts for her FMLA retaliation claim in this

case. Here, she alleges that Defendant placed Plaintiff (a longtime employee) on

probationary status after returning from FMLA leave (Docket No. 1, Ex. D, Compl. ¶¶ 15-

17). She does not allege how long she had been on FMLA leave when she resumed

work or what that status entailed. Her probationary status continued after she provided

medical clearance to return to some semblance of work and continued through her

suspension and eventual termination (id. ¶¶ 12-14, 16-17). Plaintiff later was written up

for infractions she characterizes as exaggerated or fabricated, but these arose after she

refused to engage in anti-union activities for Defendant (cf. id. ¶¶ 18-23). She does not

allege what those infractions were or how they were unjustified. She also does not allege

that these infractions were due to her using FMLA leave in 2014 save her conclusory

pretext allegation (cf. id. ¶¶ 29, 30, 38).

Accepting as true for purposes of this Motion to Dismiss, the Complaint

nevertheless fails to allege either willful conduct or reckless disregard for Defendant’s

obligation to refrain from retaliation, cf. De Figueroa, supra, 403 F. Supp.3d at 154.

Here, White obtained and used FMLA leave in 2014 returning sometime in 2016

to a probationary status that continued until 2018. There are no further allegations

regarding her use or application to use FMLA leave. Plaintiff thus fails to allege willful

conduct to warrant the longer limitations period.

b. Applicable Limitations Period

Absent alleged willful conduct, the applicable limitations period is two years. It is

uncontested that the last date alleged was September 2018 and Plaintiff’s suspension

(and leading to her termination at some unstated date) but she filed her state Complaint

on March 20, 2021 (Docket No. 1, Ex. D, Compl. ¶ 23), more than two years later.

Plaintiff’s timely FMLA claim, however, expired as of September 2020. Plaintiff’s

March 2021 Complaint thus is time barred.

Therefore, Defendant’s Motion to Dismiss (Docket No. 5) the First Cause of Action

on limitations grounds is granted. With Plaintiff’s two original federal jurisdiction claims

(alleged in the First and Third Causes of Action) dismissed, this Court next considers

supplemental jurisdiction and whether to exercise it to entertain the Second Cause of

Action under the New York State Human Rights Law.

D. New York State Human Rights Law and Supplemental Jurisdiction

Supplemental jurisdiction over the state law claims may be raised by the parties or

by this Court sua sponte, Lyndonville Sav. Bank & Trust v. Lussier, 211 F.3d 697, 700-01

(2d Cir. 2000); LaChapelle v. Torres, 37 F. Supp.3d 672, 680 (S.D.N.Y. 2014). The

parties here do not discuss supplemental jurisdiction. This Court, however, must examine

its jurisdiction at any point in the proceeding, Carnegie-Mellon Univ. v. Cohill, 484 U.S.

343, 351, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988) (the district court has “to consider

throughout the litigation whether to exercise its jurisdiction over the case”).

Original federal jurisdiction here arises from removal of this case based upon

federal subject matter jurisdiction from Plaintiff’s FMLA and FLSA retaliation claims

alleged in the First and Third Causes of Action. The Second Cause of Action under New

York Human Rights Law contains the same nucleus of operative facts as the First and

Third Causes of Action. Under 28 U.S.C. § 1367, this Court may exercise supplemental

jurisdiction over Plaintiff’s state law claims, see Klein v. London Star Ltd., 26 F. Supp. 2d

689, 692 (S.D.N.Y. 1998), or may decline to hear these supplemental state law claims,

28 U.S.C. § 1367(a), (c).

With the original jurisdiction claims dismissed, this Court will not exercise

supplemental jurisdiction over Plaintiff’s Second Cause of Action and will not consider

whether she states a claim under the New York State Human Rights Law. This case is

remanded upon finding lack of subject matter jurisdiction. “If at any time before final

judgment it appears that the district court lacks subject matter jurisdiction, the case shall

be remanded,” 28 U.S.C. § 1446(c). This Court also has the discretion to remand to state

court a removed case where “jurisdictionally sufficient claims have been eliminated and

only the pendent (now ‘supplemental’) state-law claims remain,” 14C Charles A. Wright,

Arthur R. Miller, Edward H. Cooper, Joan Steinman & Mary Kay Kane, Federal Practice

and Procedure, § 3739, at 765-66 (Juris. 2018); Carnegie-Mellon Univ., supra, 484 U.S.

at 353 (even if statute of limitations has not expired, “a remand may best promote the

values of economy, convenience, fairness, and comity”).

Thus, the remaining Second Cause of Action is remanded to New York State

Supreme Court, Erie County.

IV. Conclusion

Considering first the two of Plaintiff’s three Causes of Action alleging federal claims

(the First and Third Causes of Action), Plaintiff has not stated a claim under the Family

Medical Leave Act in her First Cause of Action because this claim is time barred. This

claim is dismissed. Plaintiff next expressly abandons her Fair Labor Standards Act

alleged in the Third Cause of Action; this claim also is dismissed.

This Court declines to exercise supplemental jurisdiction over the Plaintiff’s

Second Cause of Action for violation of the New York State Human Rights Law. Since

this case was removed from state court, the remaining claim is remanded to New York

State Supreme Court, Erie County.

Defendant’s Motion to Dismiss (Docket No. 5), therefore, is granted and this case

is remanded to state court.

V. Orders

IT HEREBY IS ORDERED, that Defendant’s Motion to Dismiss (Docket No. 5) is

GRANTED.

FURTHER, that the Clerk of Court is directed to close this federal case and remand

the remaining Second Cause of Action to New York State Supreme Court, Erie County.

SO ORDERED.

Dated: September 8, 2022

Buffalo, New York

s/William M. Skretny

WILLIAM M. SKRETNY

United States District Judge