Kirkland v. Lauth

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

COREY KIRKLAND,

Plaintiff, 22-CV-6574-FPG

v.

DECISION AND ORDER

UNIVERSITY OF ROCHESTER, et al.,

Defendants.

INTRODUCTION

Pro se Plaintiff Corey Kirkland brings this disability discrimination action against her

former employer(s)—Defendants University of Rochester and Strong Memorial Hospital.1

Defendants have moved to dismiss the complaint as untimely. ECF No. 6. Plaintiff opposes the

motion. ECF No. 9. For the reasons that follow, Defendants’ motion to dismiss is GRANTED.

LEGAL STANDARD

A complaint will survive a motion to dismiss under Rule 12(b)(6) when it states a plausible

claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). A claim for relief is plausible when

the plaintiff pleads sufficient facts that allow the Court to draw the reasonable inference that the

defendant is liable for the alleged misconduct. Id. at 678. In considering the plausibility of a

claim, the Court must accept factual allegations as true and draw all reasonable inferences in the

plaintiff’s favor. Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011). At the same time,

the Court is not required to accord “[l]egal conclusions, deductions, or opinions couched as factual

allegations . . . a presumption of truthfulness.” In re NYSE Specialists Secs. Litig., 503 F.3d 89,

95 (2d Cir. 2007). “Although the statute of limitations is ordinarily an affirmative defense that

must be raised in the answer, a statute of limitations defense may be decided on a Rule 12(b)(6)

motion if the defense appears on the face of the complaint.” Ellul v. Congregation of Christian

Bros., 774 F.3d 791, 798 n.12 (2d Cir. 2014).

BACKGROUND

The following facts are taken from the amended complaint, unless otherwise noted.

Plaintiff began working at “University of Rochester Strong Memorial Hospital” in 2002, initially

as a Sterile Processing Technician. ECF No. 1 at 2, 7. In 2013, Plaintiff injured her back at work.

ECF No. 3 at 8. In April 2019, as part of a workers’ compensation award, Plaintiff received “275

weeks to use to be out of work.” Id. at 8. In February 2020, Plaintiff’s doctor directed that she

work a reduced schedule of three days per week. Id. Due to her workers’ compensation award,

Plaintiff was excused from working the remaining two days of each workweek. Id. At some point,

Plaintiff took bereavement leave, returning on April 19, 2021. Upon Plaintiff’s return, her

department director, Adel Afridi, informed her that he “could not accommodate” her restrictions.

Id. Afridi warned Plaintiff that she had until May 21, 2021 to “find another job within the

hospital.” ECF No. 3 at 8. Plaintiff was unable to find a suitable alternative position. She alleges

that her “last day working” was May 21, 2021. Id. at 7. By this, Plaintiff appears to mean that she

was placed on leave. Cf. ECF No. 9 at 2-3. In her opposition brief, Plaintiff states that she was

not formally terminated until January 2022. ECF No. 1 at 3; ECF No. 9 at 1.

On February 23, 2022, Plaintiff filed a charge of discrimination with the New York State

Division of Human Rights and the Equal Employment Opportunity Commission (“EEOC”). ECF

No. 1 at 7. The EEOC issued a Right-to-Sue letter on September 29, 2022. Id. at 8. Plaintiff filed

her original complaint on December 22, 2022, and amended her complaint as of right on December

29, 2022. See ECF No. 3; see also Fed. R. Civ. P. 15(a)(1)(A).

Reading Plaintiff’s pleadings liberally, the Court understands Plaintiff to be bringing a

disability discrimination claim against Defendants under the Americans with Disabilities Act

(“ADA”). See ECF No. 1 at 1; ECF No. 3 at 1. The basis for that claim is Defendants’ alleged

failure to reasonably accommodate her disability, which led to her termination. See ECF No. 1 at

4. On January 5, 2023, the Court permitted Plaintiff’s claim to proceed to service against

Defendants. ECF No. 4.

DISCUSSION

Defendants contend, inter alia, that Plaintiff did not timely file her EEOC charge under the

ADA. Because the Court agrees, it need not address Defendants’ other arguments.

“A plaintiff raising an ADA claim of discrimination must exhaust all administrative

remedies by filing an EEOC charge within 300 days of the alleged discriminatory conduct.” Roy

v. Buffalo Philharmonic Orchestra, 684 F. App’x 22, 23 (2d Cir. 2017) (summary order). “[T]he

filing limitation period for claims of employment discrimination commences on the date the

allegedly discriminatory decision was made and communicated to [the employee].” Economu v.

Borg-Warner Corp., 829 F.2d 311, 315 (2d Cir. 1987) (internal quotation marks omitted). In this

case, Plaintiff alleges that she filed her EEOC charge on February 23, 2022. See ECF No. 1 at 3,

7. Therefore, to be timely, the discriminatory conduct must have occurred on or after April 29,

2021. However, Plaintiff alleges that she was notified that her restrictions would not be

accommodated on “April 19, 2021”—the day she returned to work. ECF No. 1 at 3; see also ECF

No. 3 at 7.2 Accordingly, Plaintiff’s EEOC charge based on Defendants’ refusal to accommodate

was untimely. Accord Miller-Gonzalez v. Erie Cnty. Sheriff’s Off., No. 13-CV-623, 2014 WL

1809617, at *1 (W.D.N.Y. May 7, 2014).

Plaintiff responds that her EEOC charge was timely because she did not formally stop

working until May 21, 2021, and was not formally terminated until January 2022. See ECF No. 9

2 In her opposition memorandum, Plaintiff attaches a May 27, 2021 letter from the university, in which it is stated that

at 1. Although both dates do fall within the 300-day period, neither date can be considered the

“start” of the 300-day clock. As noted, the clock commences at the time “the discriminatory

decision was made and communicated to [the employee].” Economu, 829 F.2d at 315 (internal

quotation marks omitted). “The rejection of a proposed accommodation is a single completed

action when taken,” regardless of whether “the effect of the employer’s rejection continues to be

felt by the employee for as long as [she] remains employed.” Elmenayer v. ABF Freight Sys., Inc.,

318 F.3d 130, 135 (2d Cir. 2003). April 19, 2021 is the alleged date when Defendants refused to

accommodate Plaintiff’s restrictions and communicated that refusal to Plaintiff. See ECF No. 1 at

3. It is therefore the date on which the clock began to run. See, e.g., Ross v. New York, No. 15-

CV-3286, 2017 WL 354178, at *2 (S.D.N.Y. Jan. 24, 2017).

For similar reasons, it is immaterial that Defendants did not formally place Plaintiff on

leave or terminate her employment until later. “In the event of a discriminatory discharge, the

300-day period commences when the alleged discriminatory decision is made and communicated

to the plaintiff, which may or may not coincide with the date that employment ended.” Felder v.

Pepsi Cola, No. 14-CV-4315, 2015 WL 3447216, at *4 (E.D.N.Y. May 6, 2015). As alleged,

Defendants communicated to Plaintiff on or about April 19, 2021 that she could no longer hold

her position and, consequently, would be terminated unless she found another position. See ECF

No. 3 at 8 (alleging that Afridi told Plaintiff that she “had until May 21, 2021 to find another job

within the hospital” because he could “not accommodate [her] restrictions”). Because Plaintiff’s

termination from her position was thus “inevitable” as of April 19, 2021, Del. State Coll. v. Ricks,

449 U.S. 250, 257 (1980), the limitations period began to run on the date when Plaintiff received

that “definite notice of the termination,” Economu, 829 F.2d at 315, “not [on] the date

[Defendants’] decision [took] effect.” O’Malley v. GTE Serv. Corp., 758 F.2d 818, 820 (2d Cir.

1985); see also Ricks, 449 U.S. at 257 (“Mere continuity of employment, without more, is

insufficient to prolong the life of a cause of action for employment discrimination.”); Pang v.

N.Y.C. Bd. of Educ., No. 01-CV-994, 2005 WL 1711187, at *3 (E.D.N.Y. July 20, 2005) (clock

began to run when employee received allegedly discriminatory performance rating, not when

board “imposed the consequences of the [rating] on [the employee] by placing her on the

Ineligible/Inquiry List and denying her application for a license to teach Special Education”).

Therefore, contrary to Plaintiff’s argument, her EEOC charge based on Defendants’ failure to

accommodate was untimely notwithstanding that she was placed on leave and terminated within

the 300-day period.3

Plaintiff’s claim is time-barred and must be dismissed. Nevertheless, it must be

acknowledged that Plaintiff’s filings are not fully clear concerning the timeline of the relevant

events. To the extent the Court has in any respect misconstrued Plaintiff’s allegations, she is free

to file a supplemental letter clarifying her allegations, if she wishes to do so. In addition, if she

believes she may be entitled to equitable tolling (as discussed in footnote 3), Plaintiff is free to

raise such arguments in her supplemental letter. Plaintiff’s supplemental letter is due by November

3, 2023. If Plaintiff fails to file her supplemental letter by that date, her amended complaint will

be dismissed with prejudice, and the case will be closed.

3 The Court notes that 300-day time limit is “not jurisdictional and, therefore, [is] subject to equitable tolling.” Smith

v. Homes for Homeless, No. 20-CV-10710, 2021 WL 77098, at *2 (S.D.N.Y. Jan. 7, 2021). “Equitable tolling of the

statute of limitations is only appropriate in rare and exceptional circumstances, in which a party is prevented in some

extraordinary way from exercising his rights.” Id. at *2 n.2 (internal quotation marks omitted). “To obtain the benefit

of equitable tolling, a plaintiff must show (1) that he acted with reasonable diligence during the time period tolled,

CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss (ECF No. 6) is GRANTED.

Plaintiff's amended complaint (ECF No. 3) is DISMISSED. By November 3, 2023, Plaintiff may,

if she wishes to do so, file a supplemental letter on the topics stated above. If Plaintiff fails to file

her supplemental letter by that date, her amended complaint will be dismissed with prejudice, and

the case will be closed.

IT IS SO ORDERED.

Dated: September 25, 2023

Rochester, New York

United States Districtdudge

Western District of New York