Opinion
06 Civ. 975 (DAB) (KNF).
August 30, 2007
MEMORANDUM AND ORDER
I. INTRODUCTION
On February 8, 2006, Plaintiff Cynthia Boyce-Idlett ("Boyce-Idlett"), proceeding pro se, commenced this action against Verizon Corporate Services Corp. ("Verizon") alleging employment discrimination, based on race, color and disability, and that she was denied long term disability benefits. In October 2006, the plaintiff engaged counsel. Before the Court is the plaintiff's motion to amend the complaint in order to: (1) add a necessary defendant; and (2) particularize the facts supporting her claims. The defendant contends the plaintiff's proposed amended complaint contains additional claims, not previously raised before the court or in her charge of discrimination filed with the New York State Division of Human Rights ("SDHR"). The defendant opposes the amendment contending it would be futile because: (a) the plaintiff failed to exhaust administrative remedies for her proposed pregnancy, gender and age discrimination claims; and (b) the plaintiff's Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. §§ 1001- 1461, claims are legally deficient. The motion is addressed below.
II. BACKGROUND
The plaintiff alleges she was employed by the defendant for 21 years. She contends she was absent from work on short term disability leave, from August 24, 2000, to February 4, 2001. In 2001, the plaintiff was enrolled in a long term disability benefits plan, through which she received 50% of her salary ("2001 plan"). Upon her return to work, in February 2001, the plaintiff requested a transfer to a work location closer to her home, due to health concerns. The request was denied because the defendant alleges it wanted to keep the plaintiff "with the group" of employees with whom she was assigned to work. The plaintiff contends further that, upon returning to work in February 2001, her request for a floating holiday, granted to all employees for working during an August 2000 strike, was denied. Boyce-Idlett also asserts that, after she registered for a Black Management Training Course, scheduled to be held from May 6 to May 11, 2001, she was advised she could not attend because she did not receive supervisory approval, before registering. The plaintiff asserts further that, in June 2001, an audit of certain changes made in the defendant's New York and New England Consumer Region revealed an error. Upon reviewing the matter with her supervisor and another employee, the plaintiff contends, she found the error and recommended corrective steps. A few days later, Boyce-Idlett asserts, she was held solely responsible for the error, although, at the time, another employee was in charge of the matter at issue and admitted to the plaintiff that she had made the error.
Between August 30, 2001, and August 27, 2002, the plaintiff was absent from work, on short term disability leave, under Verizon's Sickness and Accident Disability Benefit Plan for Bell Atlantic Employees. During this absence from work, Boyce-Idlett gave birth and applied for a child-care leave of absence. The plaintiff contends her supervisor delayed signing her child-care leave application, deliberately, which was approved for the period August 28 to December 1, 2002.
In the fall of 2001, the plaintiff participated in the annual fringe benefits enrollment program for the year 2002. Boyce-Idlett elected, under the Plan for Group Insurance for 2002 ("plan"), a long term disability pay option that would allow her to obtain 66 and 2/3% of her salary. The plaintiff alleges that, while she was absent from work, on short term disability and pregnancy leave, and with the knowledge that she would return to work, her supervisor posted a job vacancy announcement, for the plaintiff's position, twice: in May 2001 and October 2001. Boyce-Idlett alleges further that, after she realized she would not be able to carry forward her vacation days from 2002 into 2003, she asked to advance her return-to-work date from December 2, 2002, to November 25, 2002, but her request was denied. She contends this denial was a deliberate tactic of her supervisor, designed to promote another employee to the plaintiff's position.
The plaintiff returned to work for one day: December 2, 2002. The plaintiff alleges she was under stress and she scheduled vacation from December 3, 2002, to January 5, 2003. However, after being diagnosed with angina pectoris, the plaintiff absented herself from work from December 20, 2002, to January 3, 2003, to take advantage of a short term disability leave benefit. On January 4, 2003, the plaintiff is alleged to have started a period of absence under her long term disability benefits plan, and was subsequently terminated, under the 2001 plan. Boyce-Idlett contends the defendant made deductions from her 2002 salary based on the plan and provided her confirmatory notice of her enrollment under the plan.
The plaintiff requested that the Verizon Claims Reviewing Unit provide her long term disability benefits under the plan. Her request was denied on May 1, 2003. She appealed to the Verizon Claims Review Committee ("VCRC"). On November 25, 2003, VCRC informed the plaintiff that a letter, dated January 28, 2002, was sent to her, by a director of absence management, which explained that, in order to be eligible for the 66 and 2/3% pay option under the plan, she had to work for more than 28 consecutive days, in 2002. VCRC explained to the plaintiff that, since her short term disability benefits began prior to January 1, 2002, and she did not return to work for more than 28 consecutive days, before she began her long term disability absence, she was not eligible for the 66 and 2/3% pay option under the plan, and, was eligible for benefits under the 2001 long term disability benefits plan solely. VCRC also informed the plaintiff that the benefits plan premiums deducted from her salary in 2002, under the plan, were deducted incorrectly and would be reimbursed. Boyce-Idlett was also advised that she had a right to commence a civil action under ERISA section 502(a). The plaintiff denies ever receiving the January 28, 2002 letter.
Boyce-Idlett appealed to the United States Department of Labor, Employee Benefits Security Administration ("EBSA"), from the VCRC's determination. On April 15, 2004, EBSA advised the plaintiff that because a factual dispute exists over whether she received the January 28, 2002 letter, it was unable to determine that an ERISA violation had occurred. In addition, it advised the plaintiff that, employees who exhaust their claims and appeals under their benefit plan's procedures may commence a civil action under ERISA.
On October 21, 2003, the plaintiff filed a charge with SDHR alleging that the defendant discriminated against her by terminating her employment and denying her equal terms, conditions and privileges of employment, based on her disability, race and color, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII") and the Americans with Disabilities Act ("ADA") 42 U.S.C. §§ 12101- 12213. On September 22, 2004, SDHR determined that probable cause did not exist to believe the defendant had engaged or was engaging in the unlawful discriminatory practices the plaintiff alleged. SDHR explained that the non-discriminatory business-related reasons the defendant provided for the actions it had taken were not pretextual. On November 17, 2005, the Equal Employment Opportunity Commission ("EEOC") issued the plaintiff a right-to-sue letter, adopting SDHR's findings. The instant action followed.
III. DISCUSSION
Leave to amend a complaint should be freely given by a court when justice so requires. See Fed.R.Civ.P. 15(a). "[U]ndue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of [the] amendment" are reasons upon which a court may rely in determining to deny a request to amend a complaint. Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962). "An amendment to a pleading is futile if the proposed claim could not withstand a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)." Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002) (citingDougherty v. North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 [2d Cir. 2002]). A court may dismiss an action, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief may be granted, if the plaintiff failed to plead "enough facts to state a claim to relief that is plausible on its face."See Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S. Ct. 1955, 1974 (2007); see Iqbal v. Hasty, 490 F.3d 143, 157-58 (2007) (concluding that the Bell Atlantic Corp, "flexible `plausibility standard,' obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.) (emphasis in the original). "Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp., 127 S. Ct. at 1965.
In considering the motion, a court must take "the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). On a motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), "the district court must limit itself to a consideration of the facts alleged on the face of the complaint, and to any documents attached as exhibits or incorporated by reference." Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989) (internal citations omitted).
The plaintiff contends, in a conclusory fashion, her motion for leave to amend should be granted because "none of the reasons noted in Foman justify denial of plaintiff's motion to amend" and the plaintiff's "pro se pleading sufficiently put Verizon on notice of her claims, such that an amplification of those claims is not prejudicial and/or motivated by bad faith." The plaintiff, in a memorandum of law, proposes the following "amplification:" (1) in addition to her race and color, gender and pregnancy were motivating factors in the defendant's discriminatory treatment of her; (2) she suffered a hostile work environment; (3) she pleaded facts to support a retaliation claim under Title VII; (4) she stated properly a claim under ADA; (5) she pleaded facts sufficient to establish a retaliation claim under ADA; (6) her proposed amended complaint alleges that the plaintiff, age 49, was within a protected age group and was qualified for her position at the time she was terminated and replaced by a younger employee; (7) she alleged properly she was retaliated against based on her age; (8) she stated properly a retaliation claim under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-34 ("ADEA"); (9) she alleged sufficiently ERISA claims under 29 U.S.C. §§ 1104, 1105, 1109, 1132(a)(1)(B), 1132(a)(2) and 1132(a)(3); and (10) she pleaded properly a claim of discrimination under ERISA, 29 U.S.C. § 1140. Alternatively, the plaintiff seeks, from the Court, leave to replead.
The defendant contends the proposed amendments are futile because: (a) the plaintiff's claims based on pregnancy, gender and age discrimination and all her retaliation claims are barred, since they were never raised in an EEOC charge; (b) Verizon is not a proper party defendant to the plaintiff's claim under 29 U.S.C. § 1132(a)(1)(B); (c) the plaintiff's claim for benefits is barred by the terms of the plan; (d) the plaintiff's breach of fiduciary duty claims, made pursuant to 29 U.S.C. §§ 1104, 1105, 1109, are legally flawed because (i) Verizon is improperly named as a defendant, (ii) 29 U.S.C. § 1109 does not provide relief to individual participants in the plan; (iii) to the extent the plaintiff's claim is based on the terms of the plan, it is flawed because making decisions concerning the plan design are not fiduciary functions; (iv) to the extent that the plaintiff's breach of fiduciary duty and discrimination claims are redundant with respect to her benefits claim, they are improper; and (v) the plaintiff's claim under 29 U.S.C. § 1140 is flawed because, even if the plan's terms discriminated against her by imposing a return to work for more than 28 continuous days provision, discrimination of this ilk is neither unlawful under ERISA nor cognizable under 29 U.S.C. § 1140.
Gender and Pregnancy Discrimination and Retaliation Based on Gender and Pregnancy
Title VII provides, inter alia, that it is unlawful for an employer "to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Title VII also contains an anti-retaliation provision making it unlawful for an employer to discriminate against any of his employees "because he has opposed any practice made an unlawful employment practice by this subchapter." 42 U.S.C. § 2000e-3(a). The Pregnancy and Discrimination Act, 42 U.S.C. § 2000e(k), provides that the phrase "because of sex" includes "because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work." 42 U.S.C. § 2000e(k).
Before bringing a suit under Title VII, a plaintiff must file a charge of discrimination with the EEOC timely and obtain a right-to-sue notice. See Legnani v. Alitalia Linee Aeree Italiane, 274 F.3d 683, 686 (2d Cir. 2001). Exhausting the administrative remedies afforded by the EEOC has been identified as a precondition to bringing a Title VII discrimination claim in federal court because exhaustion is "an essential element" of the Title VII statutory scheme. See Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000). However, the Second Circuit Court of Appeals has recognized that "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." Legnani, 274 F.3d at 686 (quoting Shah v. N.Y. State Dep't of Civil Serv., 168 F.3d 610, 614 [2d Cir. 1999]). A claim is reasonably related to those raised in an EEOC charge of discrimination where: (1) the alleged discriminatory conduct "would fall within the `scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination;'" (2) the complaint is one of "retaliation by an employer against an employee for filing an EEOC charge;" and (3) "the complaint alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Terry v. Ashcroft, 336 F.3d 128, 151 (2d Cir. 2003) (quoting Butts v. City of New York Dep't of Hous. Pres. Dev., 990 F.2d 1397, 1402-03 [2d Cir. 1993] [superseded on other grounds]). Where a pro se plaintiff files a charge of discrimination with the EEOC, it is not the label on the charge, but "the factual allegations made in the [EEOC] charge itself, describing the discriminatory conduct about which a plaintiff is grieving" that is the focus of a court's inquiry. Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (citation omitted).
The plaintiff charged the defendant, in her SDHR submission, with unlawful discriminatory practices based on race, color and disability, alleging it: (1) denied her a transfer to a work location closer to her home; (2) denied her the opportunity to take a training course; (3) blamed her for an error in strategies; (4) refused to grant her child-care leave request; (5) refused to allow her to return to work early, from her child-care leave of absence; (6) posted, as vacant, and filled her position; and (7) reassigned her and terminated her employment. SDHR determined that the defendant: (a) declined to transfer the plaintiff because the computer system the plaintiff needed to use to perform her work was not accessible from the location to which Boyce-Idlett sought a transfer; (b) granted the plaintiff two short term disability leaves of absence and the child-care leave of absence she requested; and (c) terminated Boyce-Idlett's employment, pursuant to its short term disability policy, which requires that an employee be terminated after exhausting an authorized short term disability leave of absence.
No evidence exists in the record indicating that the plaintiff's allegations of discriminatory conduct, based on gender and pregnancy, and her claim of retaliation premised on these grounds, would fall within the scope of the investigation, undertaken by SDHR, based on the plaintiff's charge of discrimination. In fact, the premise of the plaintiff's gender discrimination claim is curious because she alleged that: (i) the supervisor who took adverse actions against her, including terminating her employment, is of the same sex as the plaintiff; (ii) the employees with whom she compares herself, in order to demonstrate disparate treatment because of her sex, in respect to child-care leave and when she might return to work, are of the same sex as the plaintiff; and (iii) the employee who replaced her, after the plaintiff's employment was terminated, is of the same sex as she. Even the complaint and its accompanying exhibits do not contain any allegations of sex discrimination.
The plaintiff contends — although not specifically stated in her SDHR charge of discrimination — she became pregnant, informed SDHR of this fact and, thereby, made a claim of discrimination based on pregnancy that is reasonably related to her charge of discrimination based on disability. To support the proposition that the plaintiff's pregnancy claim is reasonably related to her disability claim, the plaintiff asserts, in her reply to the defendant's opposition to her motion, that the plaintiff's pregnancy "of which Verizon was undisputedly on notice, prolonged her disability and provided Verizon with a purported basis for termination."
However, in a July 12, 2004 letter to SDHR, the plaintiff explained that her short term disability absences from work, occurring between August 2000 and December 2002, were all caused by work-related stress. She also informed SDHR that her pregnancy was in no way connected to her short term disability absences from work. On December 2, 2002, the plaintiff returned to work, for one day. She commenced a vacation on December 3, 2002. The plaintiff maintains that stress-related work conditions forced her to take a short term disability leave of absence on December 20, 2002. On January 4, 2003, the plaintiff commenced a long term disability leave of absence.
No medical or factual evidence exists in the record before the Court linking the plaintiff's pregnancy to her stress-related short term disability absences from work. The record shows that, after the plaintiff's pregnancy ended on August 2, 2002, her first report of a medical condition occurred on December 2, 2002, when she was diagnosed with chest pain. The plaintiff alleges, in her proposed amended complaint, that following her meeting with her supervisor on December 2, 2002, "she exhibited signs of stress including nose bleed, headache and chest pain," which is an allegation consistent with the assertion made in her July 12, 2004 letter to SDHR. The plaintiff reported a disabling medical condition on December 20, 2002, when she was diagnosed with angina pectoris.
No factual allegations have been made by Boyce-Idlett that any act by the defendant, alleged to be discriminatory based on gender and pregnancy, was performed in retaliation for her filing a charge of discrimination with SDHR. The plaintiff has not identified any protected activity, in which she engaged, that would form the basis of a retaliation claim. Although the plaintiff alleged, in her complaint, she believes the defendant is still committing discriminatory acts against her, including retaliation, she failed to state any facts supporting that allegation. Accordingly, the Court finds that the plaintiff's claims of gender and pregnancy discrimination and her retaliation claims, based on those grounds, are barred because they were not asserted in the plaintiff's SDHR charge of discrimination, adopted by the EEOC, and they are not reasonably related to the claims raised in the SDHR charge of discrimination. Hostile Work Environment Claim
The plaintiff contends "she suffered a `hostile work environment'" by being "subjected to harassment, either through words or actions based on illegal reason" and "the harassment had the effect of unreasonably interfering with her work performance and created objectively intimidating, hostile or offensive work environment." The defendant does not oppose this part of the motion.
"In order to establish a claim of hostile work environment, a plaintiff must produce evidence that `the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'"Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006) (quotingHarris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 370). Generally, in order to be pervasive, the incidents must be "sufficiently continuous and concerted," and not merely episodic. Id. A plaintiff has the burden of establishing that the work environment was objectively hostile and abusive, not just subjectively perceived as such. Id. Unless they are sufficiently severe to alter the terms and conditions of employment, isolated incidents usually do not rise to the level of a hostile work environment. Id. When analyzing a hostile work environment claim, a court considers factors such as: (a) the frequency of the discriminatory conduct; (b) the severity of the discriminatory conduct; (c) whether the conduct interferes unreasonably with an employee's work performance; and (d) the extent to which the conduct occurred because of the plaintiff's [protected characteristic(s)]. See id.
Typically, in order to be subjected to a hostile work environment, a plaintiff has to work. In the instant case, the plaintiff alleges she was absent from work, through a combination of short term disabilities, child-care leave and vacation, during the periods: August 24, 2000, through February 4, 2001, August 30, 2001, through December 1, 2002, and December 3, 2002, through January 6, 2003, when her employment with the defendant was terminated. The plaintiff alleges she worked from February 5 through August 30, 2001, and on December 2, 2002. According to Boyce-Idlett, she worked a part-time schedule from February 5 through March 13, 2001, and gradually increased to a full-time work schedule, which took effect on April 23, 2001. When she worked during the period February 5, 2001, through August 30, 2001, the plaintiff alleged her supervisor: (a) failed to permit her to absent herself from work by taking a floating holiday; (b) denied her a transfer to a work location closer to her home; (c) denied her the opportunity to take a training course; and (d) accused her of a strategic error.
No evidence exists in the record from which the Court would be warranted in concluding that these acts by the plaintiff's supervisor were sufficiently continuous and concerted so as to create an objectively hostile and abusive work environment. Moreover, in the July 12, 2004 letter to SDHR's investigator, Boyce-Idlett alleged, in a conclusory fashion, harassment and "continuous torment and suffering endured with respect to my professionalism and ultimately long term effects on my health and stability," and also reported that her supervisor's "unwillingness to utilize best practices and procedures imposed undue stress ultimately contributing to the progression of my disease (LUPUS). Each [short term disability] case (August 2000-December 2002) with the exception of my pregnancy was brought on by work related stress as documented by my physicians." In her complaint and proposed amended complaint, the plaintiff failed to make factual allegations that support her claim of "harassment" or "continuous torment." The only allegations in the proposed amended complaint concerning the alleged hostile work environment are the following: (1) "During [the] next several months, [the supervisor's] treatment toward [the plaintiff] continued to worsen. Such hostile treatment caused [the plaintiff] stress which manifested into various symptoms, including swelling of her hands, back and neck pain;" and (2) "Between April 2001 and September 2001, . . . [the supervisor] created a hostile work environment for [the plaintiff] and treated [the plaintiff] with disrespect, insult and ridicule." The plaintiff fell short of identifying what treatment "during the next several months" was hostile or articulating what words or acts during that period represented treatment of her "with disrespect, insult and ridicule."
The plaintiff may have perceived, subjectively, that her work environment was hostile because of the animosity in the relationship with her supervisor, but she failed to make allegations sufficient to support her proposition, that she was harassed and tormented continuously or that her workplace was permeated with discriminatory conduct so severe or pervasive that it altered the conditions of her employment and created an abusive working environment. On a motion to amend a complaint, in a case such as this, a plaintiff does not satisfy her burden by making a conclusory allegation that her supervisor created a hostile work environment without supplying any specific facts to support that claim. The Court finds that the plaintiff's factual allegations are not sufficient to survive a motion to dismiss. Therefore, permitting Boyce-Idlett to amend the complaint, to include a hostile work environment claim, would be futile.
Retaliation Under Title VII and ADA
The plaintiff contends she stated a retaliation claim properly, under both Title VII, based on race and color discrimination, and ADA. Specifically, in her memorandum of law, the plaintiff indicated she "pled sufficient facts to establish that her immediate supervisor undertook to retaliate against [the plaintiff] as a result of engaging in a protected activity, i.e. her taking disability leave." The defendant contends the plaintiff's retaliation claims under Title VII and ADA are barred because they were not raised in the SDHR charge of discrimination and are not reasonably related to the claims raised in the SDHR charge. Moreover, the defendant contends, in the plaintiff's proposed amended complaint, she failed to identify any protected activity, in which she engaged, that would form the basis of a retaliation allegation. The Court agrees with the defendant.
Like Title VII, ADA prohibits discrimination "against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter." 42 U.S.C. § 12203. A retaliation claim, asserted under Title VII or ADA either must be filed with the EEOC or be reasonably related to a claim filed with the EEOC. See 42 U.S.C. §§ 2000e- 5, 12203(c).
In her SDHR charge of discrimination, the plaintiff did not allege retaliation under Title VII or ADA, or that she engaged in any activity that would be protected under either the anti-retaliation provision of Title VII or ADA. The record shows that the only protected activity in which the plaintiff engaged, was filing a charge of discrimination with SDHR on October 21, 2003. However, since that filing occurred after the plaintiff's employment was terminated, and subsequent to all the instances of alleged discriminatory conduct asserted in the SDHR charge, it cannot provide the basis for any retaliation claims. Although the plaintiff states, in her proposed amended complaint, that she complained to the defendant's Human Resources department about the unfair treatment she received respecting her application for child-care leave, she failed to provide any specifics about the date and nature of the complaint she made, other than explaining that the supervisor, who signed her child-care leave application, did so reluctantly, in her case, and not in the case of two other women, whose applications she signed with no expressed reluctance. However, signing a child-care leave application reluctantly is not an unlawful practice under Title VII or ADA. Furthermore, complaining about a supervisor's reluctancy to sign such an application is not a protected activity under either Title VII or ADA.
The plaintiff believes, erroneously, that requesting and taking a disability leave of absence are activities protected by the ADA's anti-retaliation provision. However, asserting and exercising one's contractual rights to fringe benefits is not the same and does not qualify as opposing an employer's acts or practices made unlawful by ADA or participating in any manner in an investigation, proceeding, or hearing under ADA.
Similarly, the plaintiff's conclusory allegation, in her proposed amended complaint, that the defendant retaliated against her "after she engaged in a protected activity by complaining of the hostile, unequal treatment and harassment of her" is not supported by any specific facts indicating when, where and how she complained or what the specific facts and circumstances of any incidents of hostility, unequal treatment or harassment by her supervisor were. No evidence exists in the record to support a conclusion that the alleged unlawful retaliation would fall within the scope of the investigation SDHR undertook based on the charge of discrimination the plaintiff filed with it. Moreover, according to the defendant, during Boyce-Idlett's deposition, she did not make any claims of unlawful retaliation. Accordingly, the plaintiff's claims of retaliation under Title VII and ADA are administratively unexhausted and she is not entitled to amend the complaint to include these claims in the action.
Age Discrimination and Retaliation Based on Age
ADEA prohibits employers from discriminating against employees, who are at least 40 years of age, on the basis of their age. See 29 U.S.C. §§ 621- 634. ADEA also contains an anti-retaliation provision, making it unlawful for an employer to discriminate against an employee because the employee opposed any practices made unlawful by ADEA or who participated in an investigation, proceeding or litigation under ADEA. See 29 U.S.C. § 623(d). "No civil action may be commenced by an individual under this section until 60 days after a charge alleging unlawful discrimination has been filed with the [EEOC]." 29 U.S.C. § 626(d).
The plaintiff's ADEA claims of discrimination and retaliation are frivolous. These claims are barred because the plaintiff failed to file a charge of discrimination with EEOC sixty days before commencing her action, as required by 29 U.S.C. § 626(d).See Castellano v. City of New York, 142 F.3d 58, 72 (2d Cir. 1998). The charge of discrimination the plaintiff filed with SDHR, the findings on which were adopted by EEOC, does not mention her age or anyone else's age and does not contain any factual allegations pertinent to a claim of age discrimination that could be reasonably related to the claims raised in her SDHR charge of discrimination. Consequently, since no age-based discrimination was asserted in Boyce-Idlett's SDHR charge of discrimination, it is not conceivable that the agency investigated whether the defendant retaliated against the plaintiff based on this unasserted claim of discrimination. Moreover, contrary to the statement in the plaintiff's memorandum of law, that the proposed amended complaint contains an allegation that she was "replaced by a younger employee," the paragraph in the proposed amended pleading to which Boyce-Idlett makes reference, actually states that, prior to the plaintiff's return from a leave of absence, "a white female" was promoted to the plaintiff's position, "although [she] did not have the necessary qualifications and training for the position." In any event, inasmuch as the plaintiff's ADEA claims are barred, because of her failure to exhaust them administratively, she is not entitled to amend her complaint to include ADEA discrimination and retaliation claims.
ERISA Claims
The plaintiff alleged, in her complaint, that she was denied benefits, in violation of ERISA section 502(a). In her proposed amended complaint, Boyce-Idlett seeks to add VCRC as a defendant, and "amplify" her ERISA claim by specifying the provisions under which she alleges the defendants are liable. These provisions are: (a) 29 U.S.C. § 1132(a)(1)(B); (b) 29 U.S.C. §§ 1132(a)(2), 1132(a)(3); and (c) 29 U.S.C. § 1140.
Adding VCRC as a Defendant
In her proposed amended complaint, the plaintiff alleges Verizon "formed an administrative committee(s) known as the VERIZON EMPLOYEE BENEFITS COMMITTEE (VEBC) and the defendant, VERIZON CLAIMS REVIEW COMMITTEE (hereinafter collectively known as "THE COMMITTEE"), as the administrator(s) of the PLAN." The plaintiff asserts that VCRC, as the administrator, is a necessary party, whose presence in this litigation is required with respect to the ERISA claims.
"In a recovery of benefits claim, only the plan and the administrators and trustees of the plan in their capacity as such may be held liable." Leonelli v. Pennwalt Corp., 887 F.2d 1195, 1199 (2d Cir. 1989). In the instant case, the plan documents indicate that VEBC is the plan administrator and named fiduciary for the purposes of ERISA. The plan documents do not mention VCRC and the plaintiff has failed to present any evidence that VCRC, and not VEBC, is the plan administrator and named fiduciary. Although VEBC delegated its authority to review the decision denying Boyce-Idlett's claim for benefits to VCRC, pursuant to 29 U.S.C. § 1133(2), no evidence exists in the record that, in addition to its claim-review responsibility, VCRC was vested with any other authority or that it acted in the capacity of the administrator and trustee in respect to any matter pertinent to the plan. Therefore, adding VCRC as a party to this action and requiring it to defend against the plaintiff's ERISA claims is not warranted. The plaintiff may amend her complaint to name the designated plan administrator as a defendant, should she decide to do so.
Section 502(a)(1)(B) Claim
Verizon contends the plaintiff cannot maintain this action against it with respect to the Section 502(a)(1)(B) claim because it is not the administrator or a trustee of the plan. The plaintiff asserts Verizon is wrong because its "offices and officers are involved with the administration, determination and review of Plan's participant's benefit claims." Moreover, the plaintiff asserts, Verizon had not designated "an independent third-party as plan administrator . . . [r]ather, the [VCRC] is composed of Verizon employees."
29 U.S.C. § 1002(16)(A) explains that the plan "administrator" is "the person specifically so designated by the terms of the instrument under which the plan is operated." An employer cannot be liable "as a de facto co-administrator, in a suit brought under § 502(a)(1)(B), where the employer has designated a plan administrator in accordance with 29 U.S.C. § 1002(16)(A)." Crocco v. Xerox Corp., 137 F.3d 105, 107 (2d Cir. 1998).
Verizon designated VEBC as the plan administrator. The plaintiff's argument, that Verizon's failure to "point to an independent third-party as the administrator" and the involvement of Verizon's officers in the administration of the plan subject Verizon to Section 502(a)(1)(B) liability, is without merit. Nothing in the applicable statute indicates that the plan administrator must be an independent third-party or that the employer's officers cannot be designated as administrators and trustees. See 29 U.S.C. § 1108(c)(3). The plaintiff has failed to make citation to any authority imposing liability on an employer, under Section 502(a)(1)(B), where the employer designated a plan administrator, pursuant to the statute. Accordingly, permitting the plaintiff to amend the complaint to assert a Section 502(a)(1)(B) claim against Verizon would be futile.
The plaintiff asserts the defendant violated Section 502(a)(1)(B) when it denied her benefits under the plan. Verizon contends the plaintiff's claims under Section 502(a)(1)(B) are barred because they ignore the fact that the plan has a provision requiring the plaintiff to return to work, after an authorized leave of absence, for more than 28 consecutive days, in order to receive benefits. According to Verizon, it is undisputed that Boyce-Idlett did not return to work, for more than 28 consecutive days, after a leave of absence; thus, she cannot prevail on a claim for benefits under the plan. The plaintiff does not address this contention in her reply.
ERISA section 502(a)(1)(B) empowers a plan participant to bring a civil action "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B). "A claim under this section, in essence, is the assertion of a contractual right under a benefit plan." Strom v. Goldman, Sachs Co., 202 F.3d 138, 142 (2d Cir. 1999). In order to enforce the terms of the plan under Section 502(a)(1)(B), "the participant must first qualify for the benefits provided in that plan." Id. (quotation omitted).
In the case at bar, the plaintiff submitted evidence that, on January 28, 2002, the plan was modified to include the following terms: "Your 2002 [long term disability] election will not take effect until you actively return to work for more than 28 consecutive days in 2002. Additionally, any contributions you are required to make for 2002 coverage will not be deducted from your paycheck until you are actively at work in 2002." It is undisputed that the plaintiff worked one day in 2002, December 2, after having been away from work, on an authorized leave of absence. The plaintiff asserts that, contrary to the plan provision noted above, her contributions for 2002 coverage under the plan were deducted from her paycheck, even though she did not work for more than 28 consecutive days in 2002. However, notwithstanding the plan's error in deducting contributions from the plaintiff's pay, before she worked for more than 28 consecutive days in 2002, no doubt exists, pursuant to the express language of the plan, that working for more than 28 consecutive days in 2002 was a prerequisite to eligibility for plan benefits. The plaintiff failed to qualify for plan benefits because she did not work for more than 28 consecutive days in 2002. Consequently, because the plaintiff did not qualify for the benefits provided by the plan, she cannot maintain an action to enforce its terms and her Section 502(a)(1)(B) claim is futile.
Section 502(a)(2) Claim
The plaintiff contends she has asserted a breach of fiduciary duty claim against the defendant properly, under Section 502(a), because she seeks equitable relief "on behalf of [t]he [p]lan and is not merely seeking [an] individual benefit." Verizon contends the plaintiff has no viable claim under Section 502(a)(2) because that ERISA section provides to the plan, exclusively, the ability to obtain relief for a fiduciary's misconduct, and does not provide a similar opportunity to the plan's participants.
ERISA requires any fiduciary who breaches a duty owed to a plan, "to make good to such plan any losses to the plan resulting from [the] breach" and subjects the fiduciary to any "other equitable or remedial relief as the court may deem appropriate."See 29 U.S.C. § 1109(a). ERISA section 502(a) authorizes a plan participant or beneficiaries to bring an action "for appropriate relief under" 29 U.S.C. § 1109. See 29 U.S.C. § 1132(a)(2).
A plaintiff who seeks relief on her own behalf, and not on behalf of a fringe benefit plan, is barred from bringing a claim under Section 502(a)(2), because fiduciary duties run to a fringe benefit plan and not to the fringe benefit plan's participants and beneficiaries. See Lee v. Burkhart, 991 F.2d 1004, 1009 (2d Cir. 1993) (citing Massachusetts Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 140-44, 105 S. Ct. 3085, 3089-91). ERISA does not specify a particular procedure that a fringe benefit plan participant must follow in order to bring an action on behalf of the fringe benefit plan. However, the Second Circuit Court of Appeals has explained that a fringe benefit plan participant who complies with Fed.R.Civ.P. 23's requirements for acting in a representative capacity, or who makes a good-faith effort to join other plan participants in an action, pursuant to Fed.R.Civ.P. 19, "would seem to have discharged his or her duty to proceed on behalf of the plan." Coan v. Kaufman, 457 F.3d 250, 261 (2d Cir. 2006). "[T]he requirement is only that the plaintiff take adequate steps under the circumstances properly to act in `a representative capacity on behalf of the plan.'" Id. (quoting Russell, 473 U.S. at 142 n. 9, 105 S. Ct. at 3090).
The plaintiff asserts the defendant breached its fiduciary duties and seeks, in her proposed amended complaint, "a permanent injunction precluding defendants from denying plan members certain elected long-term disability benefits under [the plan] without giving adequate notice to all [p]lan members of newly imposed eligibility requirements." However, despite the plaintiff's assertion, that she seeks equitable relief on behalf of the plan participants under Section 502(a)(2), she has provided no evidence, to the Court, demonstrating what steps, if any, she has taken to become a representative of other plan participants and beneficiaries. While the plaintiff's proposed amended complaint alleges the defendant breached its fiduciary duty to her and "to other similarly situated plan members," referring to other potentially interested parties is not sufficient to establish that one is proceeding in a representative capacity. Furthermore, the caption of the proposed amended complaint contains the plaintiff's name solely, and no mention is made of any other plaintiff's. In the circumstance of the instant case, where the proposed amended pleading fails to indicate that the plaintiff is pursuing litigation to protect her interests and the interests of others, the Court finds that the plaintiff has failed to establish that she seeks, through her amended pleading, to bring a breach of fiduciary duty claim in a representative capacity. This failure makes her ERISA section 502(a)(2) claim futile.
Section 502(a)(3) Claim
The plaintiff also asserts a claim for a breach of fiduciary duty under ERISA section 502(a)(3). Section 502(a)(3) provides,inter alia, that a plan participant may bring a civil action: (a) to enjoin any act which violates ERISA or the terms of the plan; or (b) to obtain other appropriate equitable relief (i) to redress violations of ERISA or the plan's terms or (ii) to enforce ERISA or the terms of the plan. See 29 U.S.C. § 1132(a)(3). Section 502(a)(3) provides that equitable relief may be obtained for injuries caused by violations that Section 502 "does not elsewhere adequately remedy." Varity v. Howe, 516 U.S. 489, 512, 116 S. Ct. 1065, 1077-78 (1996); see 29 U.S.C. § 1132(a)(3). Unlike Section 502(a)(2), Section 502(a)(3) does not require a plaintiff, who employs that provision, to bring an action, in a representative capacity, on behalf of the plan.
The plaintiff cannot obtain relief based on her Section 502(a)(1)(B) or Section 502(a)(2) claims. The plaintiff's allegation, in her proposed amended pleading, that the defendant failed to provide her notice about changes in the plan that affect her substantive rights materially, taken as true for the purpose of the instant motion, create a basis for an ERISA violation. Therefore, the Court finds that the plaintiff may amend her complaint to state an ERISA section 502(a)(3) claim against the appropriate defendant.
Breach of Fiduciary Duty Claims Against Verizon
The plaintiff asserts Verizon acted as a fiduciary when it failed to notify plan participants of a change in the plan's terms, as it was obligated to do. For its part, Verizon contends it is neither a named fiduciary under the plan nor an entity to which fiduciary functions have been delegated. Therefore, a breach of fiduciary duty claim, such as the plaintiff is contemplating, could not be made against it properly. Moreover, Verizon contends, the plaintiff failed to allege that it exercised any discretionary authority over, or had any responsibility for, the administration of the plan.
ERISA provides, inter alia, that "a person is a fiduciary with respect to a plan to the extent (i) he exercises any discretionary authority or discretionary control respecting management of such plan or exercises any authority or control respecting management or disposition of its assets . . . or (iii) he has any discretionary authority or discretionary responsibility in the administration of such plan." 29 U.S.C. § 1002(21)(A). A fiduciary is also an individual or entity who is a named fiduciary in the plan's written instrument or identified as a fiduciary, pursuant to 29 U.S.C. § 1102(a). Fiduciary liability may be imposed on an employer who is not a named fiduciary only when and to the extent that it functions in the capacity of a plan administrator, see Belade v. ITT Corp., 909 F.2d 736, 738 (2d Cir. 1990) (quotation omitted), i.e., "only so far as the fiduciary has discretionary authority in the administration of a plan," Liss v. Smith, 991 F. Supp. 278, 311 (S.D.N.Y. 1998).
The plaintiff alleges, in a conclusory fashion, that Verizon is a fiduciary, as that term is defined by ERISA. She alleges Verizon had a duty to provide her with notice of a change in the plan's terms and it failed to do so. However, the plaintiff has failed to identify what discretionary authority, she contends, Verizon exercises over the administration of the plan. An allegation that Verizon had a duty to provide the plaintiff with notice about a change in the plan's terms, without a showing that it had any discretionary authority over the administration of the plan, does not subject Verizon to a claim of fiduciary liability. Accordingly, amending the complaint to assert a breach of fiduciary duty claim against Verizon would be of no utility.
Section 510 Claim
The plaintiff asserts that the imposition, on disabled employees, of a requirement that they perform more than 28 consecutive days of work in order to qualify for benefits under the plan, is a discriminatory practice that violates ERISA. Furthermore, according to Boyce-Idlett, the defendant "improperly prevented [her] from meeting" the plan's eligibility requirements, interfered with her rights under the plan and "improperly, unreasonably and in bad faith" denied her benefits under the plan. Verizon contends, to the extent the plaintiff's claim is predicated on the premise that the plan's more than 28 days of continuous work requirement violates ERISA section 510, it is flawed because, even if that eligibility requirement discriminated against the plaintiff, such discrimination is not unlawful and not cognizable under ERISA.
ERISA section 510 provides, in pertinent part, that it is unlawful for any person to discharge or discriminate against a plan participant for: (i) exercising his rights under the plan or ERISA, or for the purpose of interfering with the attainment of any right to which a plan participant is entitled under the plan or ERISA; or (ii) having given information or having testified in any inquiry or proceeding related to ERISA. See 29 U.S.C. § 1140. As the Second Circuit Court of Appeals has explained, "Section 510 protects against: (1) the disruption of employment privileges to prevent the vesting or enjoyment of benefit rights; (2) the disruption of employment privileges to punish the exercise of benefit rights; and (3) the disruption of employment privileges to prevent or punish the giving of testimony in any proceeding relating to ERISA or a sister act." Sandberg v. KPMG Peat Marwick, LLP, 111 F.3d 331, 334 (2d Cir. 1997). Section 510 was enacted "to prevent unscrupulous employers from discharging or harassing employees in order to keep them from obtaining vested pension rights." Id. (quotation omitted). "An essential element of plaintiff's proof under the statute is to show that an employer was at least in part motivated by the specific intent to engage in activity prohibited by § 510." Dister v. Continental Group, Inc., 859 F.2d 1108, 1111 (2d Cir. 1988). ERISA "does not proscribe discrimination in the provision of employee benefits."Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 91, 103 S. Ct. 2890, 2897 (1983).
The plaintiff appears to assert both: (a) Verizon discriminated against her for exercising a right to which she was entitled under the plan; and (b) Verizon acted as it did for the purpose of interfering with her attainment of a right to which she might have been entitled under the plan. However, since Boyce-Idlett failed to comply with the more than 28 days of continuous work provision of the plan, she did not qualify for the plan's benefits and could not have been discriminated against for exercising a right which she did not have. The plaintiff's contention, in her proposed amended pleading, that the defendant interfered with her ability to qualify for the plan, by deliberately failing to notify her about the more than 28 days of continuous work provision of the plan, does not state a claim upon which relief can be granted under Section 510. In order for a failure to notify a plan participant of a provision of the plan to be discriminatory conduct, a plaintiff would have to allege that a defendant treated her adversely and differently from others with regard to providing notification about the pertinent provision of the plan. However, the plaintiff has failed to make such an allegation. A review of the plaintiff's February 7, 2006 letter to the court, which is attached as an exhibit to her complaint, demonstrates that she did not know whether she was treated differently from other employees in respect to the notice, because Boyce-Idlett explained that she asked Verizon the following: "And if the January 28, 2002 letter was indeed mailed to all employees on disability, did the same chain of events happen to them; if no, why not? . . . Is there a master list of employees who received this letter and was I a member on that list?"
The plaintiff also contends "Verizon's decision to terminate and/or discriminate against [her] was at least, in part, motivated by its specific intent to deny her long-term disability benefits under the Plan coverage she elected." However, Verizon's decision to terminate the plaintiff's employment once her long term disability leave of absence was approved, was based solely on Verizon's compliance with the terms of the 2001 plan, under which the plaintiff was covered. Moreover, Verizon's decision, to deny Boyce-Idlett benefits under the plan for which she was not eligible, was based on its compliance with the terms and conditions of that plan. As Verizon has explained: "[ERISA] requires that plans be administered in accordance with their terms. If the Plan were to provide the benefits you have requested, Verizon and the Plan would be in violation of ERISA."
The plaintiff contends further that Verizon prevented her from complying with the more than 28 days of continuous work requirement when it denied her request to return to work earlier than December 2, 2002, the expiration of her child-care leave of absence. This contention is disingenuous because the plaintiff submitted her request to return from her child-care leave of absence on a date earlier than her scheduled return date: November 19, 20002, stating: "I will return to work w/e 11/29, reporting on 11/25 11/26 commencing vacation 11/27." Thus, the plaintiff's failure to comply with the more than 28 days of continuous work provision of the plan was not due to the defendant's interference with her ability to comply.
The plaintiff also relies, in her reply submission, on the holding in Coomer v. Bethesda Hosp. Inc., 370 F.3d 499, 510 (6th Cir. 2004), stating that Section 510's "prohibition against discrimination does not limit a plan sponsor's ability to design or amend a plan, `so long as the plan sponsor does not reduce the participant's [vested] benefits,'" claiming the plaintiff "clearly alleges a reduction in benefits." Apart from her failure to make citation to the proper page and the exact language of the holding, Boyce-Idlett makes the frivolous statement that she "clearly alleges a reduction in benefits." Through her complaint, the plaintiff alleged a "denial of benefit election under ERISA Section 502a." All the ERISA claims set forth in the plaintiff's proposed amended complaint are based on the alleged denial of benefits, not on any alleged reduction in benefits. The word "reduction" does not appear either in the complaint or the proposed amended complaint. The plaintiff did not and could not allege a reduction in benefits because: (a) she was denied coverage under the plan for failure to comply with its terms; and (b) she continues to receive fully the benefits to which she is entitled, under the 2001 plan. Therefore, the Court finds that the plaintiff is not entitled to amend her complaint to assert a claim under Section 510. Such a claim would be futile.
IV. CONCLUSION
For the reasons set forth above, the plaintiff's motion to amend the complaint is granted in part and denied in part, with prejudice. The plaintiff's request for leave to replead is denied.
SO ORDERED: