Rivera v. United Parcel Service et al

OPPOSITION BRIEF to Defendant's Motion to Dismiss Counts 1-8 and 15. Document

S.D.N.Y.October 3, 2016

EDWARD F. WESTFIELD, P.C. EDWARD F. WESTFIELD, ESQ . (NYS BAR NO. 1718287) 6218 RIVERDALE AVENUE RIVERDALE, NY 10471 T: (718) 601-1100 F: (212) 601-1200 E: EFW@EFWPC.COM -AND_ Hyderally & Associates, P.C. TY HYDERALLY, ESQ. (NJSBA 85013) 33 PLYMOUTH STREET, SUITE 202 MONTCLAIR, NEW JERSEY 07042 TELEPHONE (973) 509-8500 FACSIMILE (973) 509-8501 E: TYH@EMPLOYMENTLIT.COM Attorneys for Plaintiff: Rafael Rivera UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK RAFAEL RIVERA A/K/A RALPH RIVERA, PLAINTIFF, VS. UNITED PARCEL SERVICE, SHELDON ALLEN, JOHN DOES 1-10, AND XYZ CORP. 1-10, DEFENDANTS. CIVIL ACTION No: 1:16-CV-03998 (VEC) ______________________________________________________________________________ PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS COUNTS 1-8 AND COUNT 15 OF THE COMPLAINT UNDER FED. R. CIV. P. 12(B)(6) ______________________________________________________________________________ Case 1:16-cv-03998-VEC Document 38 Filed 10/03/16 Page 1 of 17 Hyderally & Associates, P.C. 33 Plymouth Street Suite 202 Montclair, New Jersey 07042 Telephone (973) 509-8500 Facsimile (973) 509-8501 Of Counsel: Ty Hyderally, Esq. On the Brief: Ty Hyderally, Esq. Zinnia Faruque, Esq. Case 1:16-cv-03998-VEC Document 38 Filed 10/03/16 Page 2 of 17 1 TABLE OF CONTENTS PRELIMINARY STATEMENT ........................................................................................ 2 LEGAL ARGUMENT ........................................................................................................ 4 I. PLAINTIFF'S COMPLAINT STATES A CLAIM FOR WHICH RELIEF CAN BE GRANTED ....................................................................................................... 4 A. Plaintiff Has Met the Plausibility Standard of Iqbal and Twombly As Interpreted By the Second Circuit..................................................................... 4 B. The Relevant Documents Prove That Plaintiff Exhausted His Administrative Remedies ........................................................................................................... 5 II. PLAINTIFF HAS EXHAUSTED ALL ADMINISTRATIVE REMEDIES UNDER TITLE VII, ADA AND ADEA. THEREFORE, DEFENDANTS' MOTION TO DISMISS THESE CLAIMS SHOULD BE DENIED ..................... 6 A. Plaintiff Has Exhausted All Administrative Remedies Under Title VII, ADA and ADEA ......................................................................................................... 6 III. PLAINTIFF HAS ADEQUATELY PLED HIS ERISA CLAIMS. THEREFORE, DEFENDANTS' MOTION TO DISMISS THESE CLAIMS SHOULD BE DENIED ................................................................................................................ 10 A. Plaintiff Has Adequately Pled His Claim Under ERISA § 502 ...................... 10 B. Plaintiff Has Adequately Pled His Claim Under ERISA § 510 ...................... 13 IV. ANY IMPERFECTION IN PLAINTIFF'S PLEADING MAY BE CURED BY THE COURT GRANTING LEAVE TO AMEND ............................................ . 14 CONCLUSION ................................................................................................................. 15 Case 1:16-cv-03998-VEC Document 38 Filed 10/03/16 Page 3 of 17 2 PRELIMINARY STATEMENT Plaintiff, Rafael Rivera a/k/a Ralph Rivera (hereinafter “Rivera” or “Plaintiff”) hereby responds to the motion to dismiss submitted by Defendants United Parcel Service (“UPS”), Sheldon Allen (“Allen”), John Does 1 - 10, and XYZ Corp. 1 - 10 (hereinafter collectively referred to as “Defendants”). Plaintiff opposes Defendants’ motion to dismiss Counts 1 - 8 and Count 15 of Plaintiff’s First Amended Complaint (“Amended Complaint” or “FAC”). First, Plaintiff has properly exhausted his administrative remedies for his claims under Title VII of the Civil Rights Act (“Title VII”), the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”), as the relevant documents corroborate, therefore Defendants’ arguments to dismiss Counts 1 - 8 are moot. However, Plaintiff voluntarily dismisses his claims against the individual Defendant, Sheldon Allen, under Title VII, ADA and ADEA. Secondly, Defendants’ motion to dismiss Plaintiff’s ERISA claims under Count 15 should also be denied. Defendants speciously argue that Plaintiff’s Section 502 ERISA claim should be dismissed because he fails to assert any facts that would support a claim, and did not exhaust the administrative remedy. Defendants’ argument is meritless on all counts. First, in order to prevail on their motion to dismiss this claim, Defendants would need to show that Plaintiff’s claims do not meet the plausibility standard under Iqbal and Twombly. As will be demonstrated more fully below, Defendants have not met their burden as Plaintiff has properly pled sufficient facts to make out a plausible basis for his claims under Iqbal and Twombly. Plaintiff’s Amended Complaint alone meets the applicable standard and establishes more than just a plausible basis for the allegations that Defendants committed numerous violations of applicable laws. Plaintiff fully anticipates that further supporting documentation and proofs will Case 1:16-cv-03998-VEC Document 38 Filed 10/03/16 Page 4 of 17 3 be uncovered during discovery. Secondly, Plaintiff exhausted his administrative remedy regarding his pension benefits when he went through UPS’s own Employee Dispute Resolution (“EDR”) program. It was entirely appropriate for Plaintiff to go through the EDR program as this was the only option available to him, and because his ERISA claims were linked to his complaints of discrimination. In the end, it was UPS that decided not to proceed any further. Thirdly, Defendants’ motion to dismiss Plaintiff’s Section 510 ERISA claim should be denied because Plaintiff does seek the proper relief for this claim, which does include equitable damages. Moreover, Defendants’ argument that Plaintiff cannot allege that he is currently entitled to any pension benefits is irrelevant. Section 510 protects Plaintiff from being retaliated against or discriminated against for asserting his rights to any future benefits, and the statute also prohibits Defendants from interfering with Plaintiff’s future pension benefits. Plaintiff has cited numerous factual allegations that support his claim that Defendants’ discriminatory and retaliatory job actions, including Plaintiff’s demotion to a lower position with lower pay, would adversely impact Plaintiff’s future pension benefits. Thus, Plaintiff has adequately pled that he seeks relief under Section 510 on these grounds. Accordingly, Plaintiff respectfully submits that Defendants’ motion to dismiss should be denied. Frankly, we believe that Defendants’ second motion to dismiss, which raises mostly the same frivolous arguments as their first motion to dismiss, is a waste of the Court’s time and resources, and only serves to unnecessarily delay and prolong this litigation and prejudice Plaintiff’s legal claims. Nevertheless, should the Court feel necessary to dismiss any of Plaintiff’s claims, Plaintiff requests permission to cure any pleading deficiencies by filing another Amended Complaint. Case 1:16-cv-03998-VEC Document 38 Filed 10/03/16 Page 5 of 17 4 LEGAL ARGUMENT I. PLAINTIFF’S COMPLAINT STATES A CLAIM FOR WHICH RELIEF CAN BE GRANTED. A. Plaintiff Has Met the Plausibility Standard of Iqbal and Twombly As Interpreted By the Second Circuit. The U.S. Supreme Court has held that a motion to dismiss under Fed. R. Civ. P. 12(b)(6) is granted only if, accepting all well-pleaded allegations in the complaint as true and viewing them in the light most favorable to the plaintiff, the court finds that a plaintiff failed to set forth fair notice of what the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)). The Supreme Court has clarified this rule in holding that a plaintiff’s complaint will survive a motion to dismiss if it contains sufficient factual allegations in the complaint to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). The plausibility standard requires that the court be able “to draw the reasonable inference [from the complaint] that the defendant is liable for the misconduct alleged” and requires “more than a sheer possibility” of the unlawful conduct. Id. (citing Twombly, 550 U.S. at 556). Although a court must accept as true all factual allegations in a complaint, a court need not accept legal conclusions or a “formulaic recitation of the elements of a cause of action” Id. (quoting Twombly, 550 U.S. at 555). In determining whether the complaint meets the pleading requirements of Fed. R. Civ. P. 8, the Court is instructed to “draw upon its judicial experience and common sense” in making this determination, and to consider the complaint as a whole and in context. Iqbal, 129 S. Ct. at 1950. “Only if this Court is satisfied that the complaint cannot state any set of facts that would entitle the plaintiff to relief will it grant dismissal pursuant to Fed. R. Civ. P. 12(b)(6).” Id. Case 1:16-cv-03998-VEC Document 38 Filed 10/03/16 Page 6 of 17 5 (internal quotation marks omitted) (citing Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1993)). Thus, even post-Twombly and Iqbal, the courts have recognized that a plaintiff is not required to establish the elements of a prima facie case in his complaint in order to survive a Rule 12(b)(6) motion; rather, he need only provide fair notice of claims that are facially plausible. Id. (citing Morris v. David Lerner Assocs., 680 F. Supp. 2d 430, 439 (E.D.N.Y. 2010); Leibowitz v. Cornell Univ., 445 F.3d 586, 591 (2d Cir. 2006)). Moreover, when analyzing motions to dismiss in discrimination cases, the Second Circuit has demanded that care be exercised to avoid “hastily dismissing complaints of civil rights violations.” Gregory v. Daly, 243 F.3d 687, 691 (2d Cir. 2001). Here, as referenced above, and as will be demonstrated more fully below, Defendants’ motion to dismiss should be denied because Plaintiff has properly pled sufficient facts to make out a plausible basis for his claims under Iqbal and Twombly. B. The Relevant Documents Prove That Plaintiff Exhausted His Administrative Remedies. When deciding a motion to dismiss for failure to state a claim, the Court’s consideration is limited to facts stated on the face of the complaint, documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken. See Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). "In addition, even if not attached or incorporated by reference, a document upon which [the complaint] solely relies and which is integral to the complaint may be considered by the court in ruling on such a motion." Roth, 489 F.3d at 509 (internal quotation marks and citations omitted; alteration in original). Generally, the harm sought to be avoided by Case 1:16-cv-03998-VEC Document 38 Filed 10/03/16 Page 7 of 17 6 not allowing documents outside the complaint in a motion to dismiss is the harm to the plaintiff due to the lack of notice that the material may be considered in determining the validity of his complaint. See Chambers at 153. (citing Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991). The Court may properly rely on documents introduced by Plaintiff that prove that he exhausted his administrative remedies, even though they were not attached as exhibits to his Complaint. See Shaw v. United States Postal Serv., 2010 U.S. Dist. LEXIS 101322, at *26 n.9 (S.D.N.Y. Aug. 16, 2010) (citations omitted) ("[b]ecause exhaustion of administrative remedies is a prerequisite to bringing suit under Title VII, . . plaintiff necessarily refers to and relies on documents exhibiting proof of exhaustion."). Here, as referenced above, and as will be demonstrated more fully below, a careful examination of the Amended Complaint and relevant documents prove that Plaintiff did, in fact, exhaust all his administrative remedies. Thus, as Plaintiff has sufficiently pled his claims under Iqbal and Twombly, and as Plaintiff has exhausted all his administrative remedies, Plaintiff respectfully submits that Defendants’ motion must fail as it is bereft of merit. II. PLAINTIFF HAS EXHAUSTED ALL ADMINISTRATIVE REMEDIES UNDER TITLE VII, ADA AND ADEA. THEREFORE, DEFENDANTS’ MOTION TO DISMISS THESE CLAIMS SHOULD BE DENIED. A. Plaintiff Has Exhausted All Administrative Remedies Under Title VII, ADA and ADEA. Defendants speciously argue that Plaintiff did not exhaust his administrative remedies for his Title VII, ADA and ADEA claims. Yet, despite Defendants’ assertions, Plaintiff’s Amended Complaint makes abundantly clear that Plaintiff filed a verified charge with the Equal Employment Opportunity Commission Case 1:16-cv-03998-VEC Document 38 Filed 10/03/16 Page 8 of 17 7 (“EEOC”). See FAC ¶¶111 - 115. Of course, it is well-settled law that when considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), all well-pleaded allegations in the Amended Complaint should be accepted as true and viewed in the light most favorable to Plaintiff. See e.g., Bell Atlantic Corp., supra. Here, the Amended Complaint specifically and affirmatively states that “on or around March 29, 2016, Rivera timely filed a signed and verified Charge of Discrimination (“COD”) with the (EEOC).” FAC ¶111. It goes on to state that “Rivera’s COD alleged claims of race discrimination; national origin discrimination; retaliation; age discrimination; hostile work environment, disparate treatment, and disability discrimination, under Title VII, the ADA and the ADEA; as well as additional claims under the FMLA and ERISA.” FAC ¶112. The Amended Complaint further states that the “COD raised the same and/or reasonably related issues before the EEOC that (Plaintiff) raises with the Court.” FAC ¶¶112 - 113. Moreover, the Amended Complaint references how “(o)n or around May 20, 2016, the EEOC issued a Right to Sue Notice to Plaintiff, stating that it had determined that it would be unable to investigate Rivera’s claims within the requisite time under the federal regulations.” FAC ¶114. Not only did Rivera make several well-pleaded allegations that he timely filed a verified COD with the EEOC and that he exhausted his administrative remedy, but he actually appended the documents that prove this, including the EEOC Intake Questionnaire (“Intake Questionnaire”), which was signed by Plaintiff and even stamped as received by the EEOC on March 29, 2016.1 FAC, Ex. 19. Yet, incredibly, in their second motion to dismiss, Defendants still claim that the Intake Questionnaire is “void of any verification on the part of Plaintiff.” We 1 When Plaintiff filed his COD with the EEOC on or around March 29, 2016, the EEOC only gave him back the first two pages stamped, which is why the signature page of the EEOC Intake Questionnaire is not also stamped. Case 1:16-cv-03998-VEC Document 38 Filed 10/03/16 Page 9 of 17 8 question whether Defendants actually took the time to look at the exhibits attached to the Amended Complaint. We also note that when Plaintiff filed the Intake Questionnaire with the EEOC, he referenced and attached a draft Complaint that comprehensively detailed his claims, contained in more than one hundred nine (109) separate allegations not including the counts and prayers for relief, and eighteen (18) exhibits. Although Plaintiff appended the Intake Questionnaire to the Amended Complaint, he did not append the draft Complaint with exhibits that was also submitted to the EEOC, because that would have unnecessarily and redundantly added approximately 80 more pages to the Amended Complaint. Of course, we know of no requirement that Plaintiff even append the Intake Questionnaire to the Amended Complaint just to prove that he exhausted his administrative remedy, but we did so here out of an abundance of caution. Yet, as even Defendants have noted, the Court can take judicial notice of Plaintiff’s COD, including the draft Complaint that was attached for the EEOC, when deciding whether the administrative remedy has been exhausted. See Winston v. Mayfair Care Center, Inc., 2011 U.S. Dist. LEXIS 156981, slip op. at *8 (E.D.N.Y. Mar. 1, 2011). Moreover, the uncontested evidence shows that Defendants were already well-aware of the contents of this draft Complaint, that they have already acknowledged that it had been attached to Plaintiff’s COD, and that it further contained claims that were the same or reasonably similar to the claims raised in this litigation - in fact, defense counsel referenced and attached Plaintiff’s draft Complaint, without exhibits, in her certification to the Court. See Declaration of Kim V. Mercardo-Washington, Esq. (“Mercado-Washington Dec.”), filed on August 8, 2016, Ex. A. Yet, Defendants still claim that Plaintiff provided no factual allegations or a written statement to the EEOC that describes the actions or practices complained of. Thus, at best, Defendants’ claims here are negligent, at worst, intentionally false and misleading. Case 1:16-cv-03998-VEC Document 38 Filed 10/03/16 Page 10 of 17 9 Moreover, Defendants do not seem to have a handle on the relevant dates and documents that show that Plaintiff did properly exhaust his administrative remedy with the EEOC, even though they have been well-documented in the Amended Complaint and exhibits. See FAC ¶¶ 111 - 115; Exs. 19 - 20. In fact, Plaintiff even appended the Right to Sue Notice from the EEOC, which further verifies that Plaintiff exhausted his administrative remedy within the appropriate timeline stipulated by the federal regulations. FAC, Ex. 20. At this point, it really just becomes gratuitous that Defendants continue to belabor this issue, as it is not even a close call. Next, Defendants speciously claim Plaintiff’s ADEA claim should be dismissed because Plaintiff did not provide any factual allegations in the Intake Questionnaire to explain the age discrimination claim that he now brings forth. Again, this is a red herring. As already set forth above, Plaintiff detailed the same or reasonably same age discrimination claims in his COD, as he does in this litigation. See FAC ¶112; see also Mercado-Washington Dec., Ex. A. Also, Defendants incorrectly rely on Robinson v. Macy's, 2014 U.S. Dist. LEXIS 173615 (S.D.N.Y. Dec. 5, 2014), in support of their specious argument that Plaintiff failed to assert an age discrimination claim just because he inadvertently failed to check off the “age” box in the EEOC Intake Questionnaire. In fact, in Robinson, the Southern District ruled that simply checking a box, or failing to check a box, does not control the scope of Plaintiff’s Complaint. See Robinson, 2014 U.S. Dist. LEXIS 173615, at *11 (emphasis added). Instead, under 29 C.F.R. 1601.12, "a charge is sufficient when the Commission receives from the person making the charge a written statement sufficiently precise to identify the parties, and to describe generally the action or practices complained of." Id. at *13-14. Again, Plaintiff comprehensively outlined Case 1:16-cv-03998-VEC Document 38 Filed 10/03/16 Page 11 of 17 10 his age discrimination claim in numerous allegations in his COD, including the draft Complaint that was attached to the Intake Questionnaire. Thus, as Plaintiff has properly pled his Title VII, ADA and ADEA claims and has exhausted his administrative remedies for these claims, Defendants’ motion to dismiss Counts 1 - 8 against UPS should be denied. Finally, if the Court wishes Rivera to provide any further documentation or information verifying that he exhausted all his administrative remedies, Fed. R. Civ. P. 15(a) stipulates that “leave to amend shall be freely given when justice so requires.” Twisted Records v. Rauhofer, 2005 WL 517328 (S.D.N.Y., 2005) (citing, Fed. R. Civ. P. 15(a)). Although Plaintiff believes this should not be required at this juncture, he is willing to amend the Complaint, if necessary. III. PLAINTIFF HAS ADEQUATELY PLED HIS ERISA CLAIMS. THEREFORE, DEFENDANTS’ MOTION TO DISMISS THESE CLAIMS SHOULD BE DENIED. A. Plaintiff Has Adequately Pled His Claim Under ERISA § 502. Next, Plaintiff has properly pled sufficient facts to make out a plausible basis for his Section 502 claims under Iqbal and Twombly. Section 502 permits a beneficiary “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.A. § 1132(a)(1)(B) (emphasis added). In his Amended Complaint, Plaintiff details how he has sought process to clarify how Defendants’ discriminatory and retaliatory actions will impact his future pension benefits under Section 502. Although Defendants claim that they have “no way of knowing” what Plaintiff’s claims are under Section 502, Plaintiff explicitly refers to 29 U.S.C.A. § 1132 in bold lettering in Count 15 of his Amended Complaint, and he further details his allegations regarding his ERISA Case 1:16-cv-03998-VEC Document 38 Filed 10/03/16 Page 12 of 17 11 claims throughout the Amended Complaint as well as in Count 15 of the Complaint. See e.g., FAC ¶¶19; 35 - 36; 43 - 44; 94 - 97; 112; Count XV ¶¶181 - 190. Specifically, Plaintiff alleges in his Amended Complaint that Defendants have willfully and intentionally interfered with his future pension benefits under the terms of his benefits plan by reducing his salary and commission in retaliation for his complaints about discrimination. See e.g., FAC ¶¶19; 94 - 97; 182. Moreover, Plaintiff further alleges that UPS has engaged in a deliberate pattern and practice of such ERISA violations against numerous employees, like the Plaintiff, by forcing these employees to retire when they reach age 55 to avoid paying them higher pensions. See e.g., FAC ¶¶184 - 185. Plaintiff goes on to state that UPS perpetuates its pattern and practice of intentionally interfering with employees’ attainment of higher pension benefits by imposing position transfers, demotions and subjective manipulation of performance results on the employees they want to target. FAC ¶186. In fact, as Plaintiff pled in the Amended Complaint, “employees who remain employed beyond age 55 risk reduction in pension benefits based upon UPS policy of selecting a consecutive five-year period of the employees’ final 10 years of employment on which to calculate the employees’ pension benefits.” FAC ¶187. Plaintiff provides specific examples of other employees, who like him, are believed to be targeted because of their age and/or suffered actions by UPS that negatively impacted their pension benefits due to their age. FAC ¶¶22, 188 - 189. As Plaintiff contends, UPS’s broader pattern and practice of discrimination mirrors the pattern and practice of discrimination that they perpetuated against Plaintiff specifically, including manipulating his performance results and demoting his position, so as to have a negatively impact on his pension. See generally, FAC. Case 1:16-cv-03998-VEC Document 38 Filed 10/03/16 Page 13 of 17 12 Thus, Plaintiff has made numerous and detailed allegations regarding his claims under Section 502, despite Defendants feigning ignorance of Plaintiff’s position and claiming that Plaintiff did not provide fair notice of his ERISA claims. Moreover, Plaintiff exhausted his administrative remedies for his ERISA claims, including his Section 502 claim, when, as he pled in the Amended Complaint, he made a formal complaint through the EDR program on or around February 8, 2015 regarding his rights to future pension benefits. FAC ¶43. However, rather than investigate or take remedial measures, Defendants retaliated against Rivera. FAC ¶44. In fact, as specifically pled in the Amended Complaint, Plaintiff had already met with UPS and the mediator on several occasions regarding his ERISA claims, and it was UPS that decided to end the arbitration process. FAC ¶¶116 - 117. Plaintiff even appended the letter from UPS, dated July 10, 2015, in which UPS terminated the EDR process. FAC Ex. 21. Yet, Defendants speciously argue that Plaintiff did not exhaust his administrative remedy because his discrimination complaints were not also directed to UPS’s benefit plan administrator, but this is irrelevant, because Plaintiff pursued the only option that was available to him. Moreover, as Plaintiff’s ERISA claims were directly linked to his discrimination claims, it was entirely appropriate for him to seek relief through the EDR process. Even assuming that Plaintiff was required to only go through UPS’s benefit plan administrator in order to exhaust his administrative remedy for pension benefits - the same being denied - UPS’s plan’s terms could reasonably be interpreted to not require exhaustion for future pension benefits. See Kirkendall v. Halliburton, Inc, 707 F.3d 173 (2d Cir. N.Y. 2013)(holding that participants are not required to exhaust administrative remedies under a pension plan’s claims procedures prior to commencing a suit under the ERISA when the plan’s terms could reasonably be interpreted not to require exhaustion for future pension benefits). In Kirkendall, Case 1:16-cv-03998-VEC Document 38 Filed 10/03/16 Page 14 of 17 13 the Second Circuit ruled that the defendant employer’s claims procedures did not include provisions related to the plaintiff employee’s particular benefit challenge-a claim for clarification of future benefits. Similarly, here, UPS’s benefits plans included no remedy for Rivera’s claims regarding his future pension benefits. Thus, even though Rivera was not required to exhaust an administrative remedy, he sought process for his claims through UPS’s EDR procedure, the only option available to him. Thus, as Plaintiff has adequately pled his claims under ERISA § 502 and exhausted his administrative remedy (although he was not required to do so), Defendants’ motion to dismiss this claim should be denied. B. Plaintiff Has Adequately Pled His Claim Under ERISA § 510. ERISA section 510 makes it unlawful for any person to discharge, fine, suspend, expel, discipline or discriminate against a participant or beneficiary for exercising any right to which he is entitled or may become entitled under an ERISA plan. See 29 U.S.C.A. § 1140. Defendants erroneously claim that Plaintiff cannot show how Defendants’ actions are linked to any reduction in what his pension benefits might be many years from now. As we have already outlined, supra, Point III, A, Plaintiff’s Amended Complaint contains detailed allegations that show how Defendants have willfully and intentionally interfered with Plaintiff’s future pension benefits by, for example, demoting him, reducing his salary, and interfering with his commission, in retaliation for his complaints about discrimination. The discriminatory actions that Plaintiff alleges occurred are precisely the types of actions that Section 510 safeguards against it. Thus, Defendants try another tactic by erroneously claiming that Plaintiff does not properly seek equitable damages. However, the Amended Complaint explicitly alleges that Case 1:16-cv-03998-VEC Document 38 Filed 10/03/16 Page 15 of 17 14 Plaintiff seeks relief to include “(s)uch other, further and different relief as the Court deems fitting, just and proper,” and even explicitly references “equitable damages.” See FAC, page 22. Defendants also claim that it would be “complete speculation” to determine the monetary damages that Plaintiff would be owed “given the years of work ahead of Plaintiff before he is entitled to pension benefits.” However, Plaintiff is currently 50 years of age, and is grandfathered into UPS’s former more lucrative retirement program, which would make him eligible for retirement at the age of 55. FAC ¶¶36, 184. Of course, it is up to Plaintiff to decide whether he would actually retire at age 55, but if he were to do so, that would be only five years from now, and therefore, not very difficult to predict how his pension benefits might be impacted. Thus, for the reasons referenced above, Defendants’ motion to dismiss Counts 1 - 8 and 15 should be denied. IV. ANY IMPERFECTION IN PLAINTIFF’S PLEADING MAY BE CURED BY THE COURT GRANTING LEAVE TO AMEND. To the extent that Plaintiff’s Amended Complaint requires more detailed allegations than those presented, Fed. R. Civ. P. 15(a) provides that “leave to amend shall be freely given when justice so requires.” Twisted Records v. Rauhofer, 2005 WL 517328 (S.D.N.Y., 2005), citing, Fed. R. Civ. P. 15(a). Plaintiff disputes that his Amended Complaint requires additional detail to support the causes of action contained therein. However, even if the Court is inclined to find that any additional language or factual details should be in included in Plaintiff’s Amended Complaint, this may be cured by the Court’s granting leave to so amend the Amended Complaint. Case 1:16-cv-03998-VEC Document 38 Filed 10/03/16 Page 16 of 17 15 CONCLUSION For all of the reasons above, Plaintiff respectfully requests that the Court deny Defendants’ motion to dismiss Plaintiff’s Amended Complaint. Nevertheless, should the Court feel necessary to dismiss any of Plaintiff’s claims, Plaintiff requests permission to cure any pleading deficiencies by filing an Amended Complaint within a time to be set by the court. Respectfully submitted, /s Ty Hyderally___________ Ty Hyderally, Esq. Hyderally & Associates, P.C. 33 Plymouth Street, Suite 202 Montclair, New Jersey 07042 (973)509-8500; (973)509-8501 Counsel for Plaintiff T:\1Law Offices of Ty Hyderally\Rivera Rafael\Pleadings\093016.BRF Opp. 2 MTD.doc Case 1:16-cv-03998-VEC Document 38 Filed 10/03/16 Page 17 of 17 1 EDWARD F. WESTFIELD, P.C. EDWARD F. WESTFIELD, ESQ . (NYS BAR NO. 1718287) 6218 RIVERDALE AVENUE RIVERDALE, NY 10471 T: (718) 601-1100 F: (212) 601-1200 E: EFW@EFWPC.COM -AND_ Hyderally & Associates, P.C. TY HYDERALLY, ESQ. (NJSBA 85013) 33 PLYMOUTH STREET, SUITE 202 MONTCLAIR, NEW JERSEY 07042 TELEPHONE (973) 509-8500 FACSIMILE (973) 509-8501 E: TYH@EMPLOYMENTLIT.COM Attorneys for Plaintiff: Rafael Rivera UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK RAFAEL RIVERA A/K/A RALPH RIVERA, PLAINTIFF, VS. UNITED PARCEL SERVICE, SHELDON ALLEN, JOHN DOES 1-10, AND XYZ CORP. 1-10, DEFENDANTS. CIVIL ACTION No: 1:16-CV-03998 (VEC) I hereby certify that a copy of Plaintiff’s Brief in Opposition to Defendants’ Motion to Dismiss The Second Amended Complaint Under Fed. R. Civ. P. 12(B)(6), and this Certificate of Service were served by sending same via U.S. First Class mail and Electronic Case Filing on October 3, 2016. Case 1:16-cv-03998-VEC Document 38-1 Filed 10/03/16 Page 1 of 2 2 HYDERALLY & ASSOCIATES, P.C. Attorneys for Plaintiff By: /s Ty Hyderally TY HYDERALLY, ESQ. for the Firm DATED: October 3, 2016 T:\1Law Offices of Ty Hyderally\Rivera Rafael\Pleadings\081716.COS.doc Case 1:16-cv-03998-VEC Document 38-1 Filed 10/03/16 Page 2 of 2