United States District Court, Southern District of New York
March 31, 2003
RITA BLOOM, PLAINTIFF, AGAINST NEW YORK CITY BOARD OF EDUCATION, TEACHERS' RETIREMENT SYSTEM OF THE CITY OF NEW YORK, AND NEW YORK CITY, DEFENDANTS.
The opinion of the court was delivered by: Henry Pitman, United States Magistrate Judge
I. Introduction Plaintiff brings this civil rights action against the New York City Board of Education (the "NYCBOE"), the Teachers' Retirement System of the City of New York (the "TRS"), and the City of New York (the "City") (the "Defendants"), asserting claims under the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., the Rehabilitation Act, 29 U.S.C. § 791 et seq., the Public Health Services Act, 42 U.S.C. § 300bb et seq., the anti-discrimination provisions of New York's Executive Law and the New York City Administrative Code, and for breach of contract. Defendants move for an Order pursuant to Fed.R.Civ.P. 12(b)(6) dismissing the Second Amended Complaint for failure to state a claim on which relief can be granted. The parties have consented to my exercising plenary jurisdiction in this matter pursuant to 28 U.S.C. § 636 (c).
For the reasons set forth below, defendants' motion to dismiss is granted with respect to plaintiff's claims against the NYCBOE for violations of New York Executive Law Sections 292(5) and 296, Section 8-107 of the Administrative Code of the City of New York, and for breach of contract, without prejudice to plaintiff's moving for leave to file a late notice of claim against the NYCBOE. Defendants' motion is denied in all other respects.
Plaintiff's Second Amended and Supplemental Complaint, dated May 7, 2002 ("Am. Compl."), alleges the following facts.
Plaintiff was hired by the NYCBOE as a teacher in 1967 and began working as a guidance counselor in 1970 (Am. Compl. ¶ 13). Plaintiff alleges that she "satisfactorily performed the essential duties and responsibilities of her employment as a guidance counselor and was otherwise qualified, with reasonable accommodation, to hold a position with the [NYCBOE] as a guidance counselor" (Am. Compl. ¶ 14).
Plaintiff alleges that in approximately 1990, she became ill with "a severe respiratory disability defined as reactive airways disease, anaphylaxis, and allergic hypersensitivity" (Am. Compl. ¶ 12), after being exposed to "toxic fumes and environmental hazards as [a] result of renovation work" being performed during working hours at P.S. 158, where she was then working as a guidance counselor (Am. Compl. ¶ 15). According to plaintiff, the renovations included "the improper removal and dangerous release of asbestos into the school environment" (Am. Compl. ¶ 15).
Plaintiff alleges that her condition "substantially limits her ability to breathe, requires [her] periodically to supplement her air intake with pure oxygen, and significantly restricts plaintiff from coming into contact with environmental impurities, including pollution and allergens" (Am. Compl. ¶ 12). Plaintiff alleges that the NYCBOE, through its Medical Bureau and Chancellor, "confirmed that plaintiff's disability resulted from and was exacerbated by her exposure to these environmental hazards that affected not only the plaintiff, but others connected with the public schools, including school children" (Am. Compl. ¶ 17).
Due to her disability, plaintiff alleges that she requested "reasonable accommodation" for her condition, specifically, "a transfer to a school location with proper ventilation" and line-of-duty injury pay for the time she was absent from work as a result of her disability (Am. Compl. ¶ 18). In 1991, the Medical Bureau of the NYCBOE examined plaintiff for the first time, but made no determination as to her eligibility for line-of-duty injury pay. Such a determination is required under the collective bargaining agreement ("CBA") between the NYCBOE and the United Federation of Teachers ("UFT") and NYCBOE's by-laws in order for a union member to receive line-of-duty injury pay (Am. Compl. ¶¶ 18-22).
Plaintiff alleges that she returned to work in September 1991, at which time she was assigned to Junior High School ("J.H.S.") 131, "without any consideration whether this new assignment constituted a reasonable accommodation" (Am. Compl. ¶ 23). As a result of environmental hazards allegedly present at J.H.S. 131, plaintiff claims that she suffered from further respiratory problems that necessitated her absence from work (Am. Compl. ¶ 23). Plaintiff alleges that during this period of time, she was not paid for any of the days she was absent due to her disability (Am. Compl. ¶ 23).
In September or October of 1991, Rochelle Cohen, the principal of P.S. 158, and the UFT referred plaintiff to the Irving J. Selikoff Occupational Health Clinical Center at Mount Sinai Hospital (Am. Compl. ¶ 24). Plaintiff alleges that she was examined there by Dr. Phyhis Marino, who confirmed her disability and stated the following:
It is my recommendation that Ms. Bloom not return to
either of her two previous schools (PS 158 or JHS
131), as she reports they continue to have air quality
problems, or to any workplace with ongoing renovation
or inadequate ventilation. I feel that she is fit to
return to work if her workplace contains an office
that has adequate ventilation, including both intake
and outflow vents, a window, and is basically free of
mold, inorganic matter (such as rodent droppings)
[sic] and is generally clean and relatively dust
(Am. Compl. ¶ 24).
Plaintiff was then examined for a second time by the NYCBOE's Medical Bureau. Plaintiff alleges that Dr. Barneville, a pulmonary specialist within the Medical Bureau, also concluded that "JHS 131 posed an environmental hazard to plaintiff's disability" and plaintiff should not return to work at that location (Am. Compl. ¶ 25). In addition, plaintiff alleges she was examined by Dr. Garner, a Medical Bureau psychiatrist, who found that plaintiff was fit for service provided that her disability was accommodated (Am. Compl. ¶ 25).
According to plaintiff, the NYCBOE breached the CBA by, among other things, failing to accommodate her requests for a suitable work environment and failing to provide her with line-of-duty injury pay (Am. Compl. ¶¶ 26, 39). Instead, plaintiff alleges that the NYCBOE assigned her to three different schools, none of which had "adequate ventilation" (Am. Compl. ¶ 26).
Plaintiff alleges that she filed a complaint with the New York City Commission on Human Rights in December 1991, alleging discrimination on the basis of her disability (Am. Compl. ¶ 27).
Plaintiff requested a determination by the NYCBOE's Medical Bureau regarding her fitness for service and line-of-duty injury pay in January 1992 (Am. Compl. ¶ 28). Plaintiff alleges that the Medical Bureau informed her that she was required to submit to an independent medical examination, which, according to the CBA, "was a mandatory examination before a medical arbitrator whose determination was final and binding on the Board" (Am. Compl. ¶ 29). On February 3, 1992, plaintiff was examined by Dr. Susan Daum, who issued a confidential report and evaluation dated March 2, 1992, concluding that plaintiff "suffered an injury in the line of duty and that plaintiff's line of duty injury absence was continuing as a result of her disability" (Am. Compl. ¶ 33). In a second report issued on March 10, 1992, Dr. Daum concluded that "`although [plaintiff] desires to work, it is my opinion that it would be dangerous (in view of the severity of her reactions), for her to have any further exposures to environments which are not well-cleaned, well-ventilated, and without any irritant fumes or rodent materials'" (Am. Compl. ¶ 35).
Plaintiff alleges that Dr. Audrey Jacobson, the medical director of the NYCBOE's Medical Bureau, adopted Dr. Daum's findings in April 1992 (Am. Compl. ¶ 36), and that on September 30, 1992, the Chancellor of the NYCBOE ordered that plaintiff be paid line-of-duty injury pay for the days she was absent due to her disability, namely several days in 1990 and January 1991, and for the period from February 7, 1991 continuing to the end of the June 1992 school year (Am. Compl. ¶ 37). Plaintiff alleges that the NYCBOE's determination noted:
[Plaintiff has a severe respiratory condition which
has been medically linked to construction which took
place at P.S. 158 where proper safety precautions may
not have been observed. It has been established that
she had no allergic sensitivities before the
construction took place. This is sufficient to satisfy
the criteria under Special Circular No. 32, 1989-1990
that an injury in the line of duty be the result of an
accident or incident which could not be avoided with
ordinary care or was the result of an untoward
incident, extraordinary circumstances or dangerous
condition, or that it occurred in the exercise of
ordinary care. Her various allergic sensitivities
manifested themselves in two older buildings where
mold and rodent droppings were prevalent. However, a
brand new school, I.S. 217M on Roosevelt Island, is
being opened for the 1992-1993 school year. An
assignment to this school should eliminate many of the
problems experienced by [plaintiff] with past
assignments to older buildings. The administrative bar
is therefore lifted and the grievance is sustained
with back pay for the dates indicated above.
[Plaintiff] is directed to report to I.S. 217M
effective September 8, 1992.
(Am. Compl. ¶ 37).
Despite the NYCBOE's directive for plaintiff to return to work in September 1992 on Roosevelt Island, plaintiff did not do so, allegedly relying on a letter from Dr. Daum, dated October 20, 1992, which stated that "plaintiff should not be assigned to a school at that time" because she sustained an "`illness that occurred in the line of duty'" (Am. Compl. ¶ 38).*fn1
Plaintiff alleges that from the date it was determined that she sustained an injury in the line of duty — in April 1992 — under the CBA and its by-laws, the NYCBOE was required to pay plaintiff her salary until she was able to resume work at a location that accommodated her disability (Am. Compl. ¶ 39). However, the NYCBOE allegedly failed to pay plaintiff her salary and allegedly failed to "explore any and all reasonable accommodations to plaintiff's disability" despite her repeated requests (Am. Compl. ¶¶ 39-40). Plaintiff alleges that this treatment continued until December 10, 1997, when the NYCBOE informed her that her employment had been terminated in October 1997 (Am. Compl. ¶¶ 41, 48);*fn2 an action which plaintiff alleges violated the CBA because the NYCBOE did not follow the procedures for terminating a guidance counselor (Am. Compl. 55).
Plaintiff also alleges that although her medical insurance coverage had remained in effect until September 1997, defendants terminated plaintiff's coverage in 1997 and made the termination retroactive to a date in 1984 (Am. Compl. ¶ 49). As a result, plaintiff alleges that she was denied health coverage at that time, but also the "right to elect to continue coverage by paying the premiums herself because the sixty days within which plaintiff had to select continuation coverage had purportedly passed by thirteen years" (Am. Compl. ¶ 58).
Following her termination, plaintiff alleges that "neither TRS nor [the New York City Employee Benefit Program ("NYCEBP")] has provided any benefits to plaintiff in recognition of her continued and continuing employment, whether medical insurance coverage in the case of NYCEBP or pension credits and accruals, and loan repayments, in the case of TRS [sic]" (Am. Compl. ¶ 54).
B. Procedural History
Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC") on October 6, 1998, within three-hundred days of December 10, 1997, the date she was allegedly informed of her termination (Am. Compl. ¶ 7). The EEOC issued plaintiff a Notice of Right to Sue letter on January 6, 2000 (Am. Compl. ¶ 7). Plaintiff commenced this action on April 6, 2000 with the filing of her initial complaint. Plaintiff subsequently filed an amended complaint on July 27, 2000.
In October 2000, plaintiff alleges that the parties appeared before the Honorable Harold Baer, Jr., United States District Judge, who order the NYCBOE "to explore an accommodation for plaintiff, namely, to determine the availability of guidance counselor positions and to offer plaintiff a job opportunity if a position were [sic] available" (Am. Compl. ¶ 51). Plaintiff alleges that although guidance counselor positions were available, the NYCBOE refused to offer her such a position (Am. Compl. ¶ 52).
On May 29, 2001, defendants moved pursuant to Fed.R.Civ.P. 12(c) for judgment on the pleadings. In response, plaintiff cross-moved for leave to file a second amended complaint on August 24, 2001. On March 29, 2002, I denied defendants' motion for judgment on the pleadings, without prejudice, and granted plaintiff's motion to file a second amended complaint. Bloom v. New York City Bd. of Educ., 00 Civ. 2728 (HBP), 2002 WL 484689 (S.D.N.Y. Mar. 29, 2002).
Plaintiff's second amended complaint, filed on May 7, 2002, asserts nine claims: (1) employment discrimination and retaliation in violation of Title I of the Americans with Disabilities Act ("ADA") by the NYCBOE; (2) employment discrimination under the Rehabilitation Act by the NYCBOE; (3) employment discrimination under the Rehabilitation Act by the TRS and the NYCCEBP; (4) discrimination in violation of Title II of the ADA by all defendants; (5) violation of the Public Health Services Act ("PHSA") by the NYCEBP; (6) discrimination in violation of New York Executive Law Sections 292(5) and 296 by the NYCBOE; (7) discrimination in violation of Section 8-107 of the Administrative Code of the City of New York by the NYCBOE; (8) retaliation for her complaints of discrimination in violation of the ADA, the Rehabilitation Act, the New York Executive Law, and Title 8 of the Administrative Code of the City of New York by all defendants, and (9) breach of contract based on (a) the NYCBOE's failure to abide by the medical arbitrator's determination, failure to provide line-of-injury duty pay, and failure to follow procedures for termination; (b) the NYCEBP's wrongful termination of plaintiff's health coverage, and (c) the TRS's wrongful discontinuance of plaintiff's pension credits and unilateral modification of the terms of a loan taken out by plaintiff (Am. Compl. ¶¶ 65-112).
Defendants move to dismiss the second amended complaint on the following five grounds: (1) plaintiff's claims pursuant to Titles I and II of the ADA, the Rehabilitation Act, New York Executive Law Sections 292(5) and 296, and Section 8-107 of the Administrative Code of the City of York are untimely; (2) Title II of the ADA does not provide a right of action for employment discrimination; (3) plaintiff's retaliation claim fails to state a claim because the defendants have not treated plaintiff differently since she filed her charge of discrimination or commenced this action; (4) plaintiff's failure to file a notice of claim pursuant to New York Education Law Section 3813 bars her claims under the New York State and New York City Human Rights Laws and her breach of contract claim, and (5) plaintiff's claim alleging violations of the PHSA fails to set forth an injury-in-fact (Defendants' Memorandum of Law in Support of Their Motion to Dismiss the Second Amended and Supplemental Complaint, dated July 11, 2002 ("Defs.' Mem."), at 2).
A. Motion to Dismiss
The legal standard applicable to a motion seeking dismissal under Rule 12(b)(6) is well settled and requires only brief review.
On a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the Court must accept the well-pleaded factual
allegations in the complaint as true. See Grandon v.
Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir.
1998). The Court's function on a motion to dismiss is
"not to weigh the evidence that might be presented at
trial but merely to determine whether the complaint
itself is legally sufficient." Goldman v. Belden,
754 F.2d 1059, 1067 (2d Cir. 1985). The Court must
draw all reasonable inferences in the plaintiff's
favor, see Grant v. Wallingford Bd. of Educ., 69 F.3d 669,
673 (2d Cir. 1995), but must limit itself to facts
stated in the complaint, documents attached to the
complaint as exhibits and documents incorporated by
reference. See Dangler v. New York City Off Track
Betting Corp., 193 F.3d 130, 138 (2d Cir. 1999)
Generally, plaintiffs are not required to set out in
detail the facts upon which their claims are based,
although a complaint will be dismissed if it fails to
set forth any facts indicating the existence of a
viable claim. See Gregory v. Daly, 243 F.3d 687, 692
(2d Cir. 2001) (citation omitted).
George v. New York City Health & Hosp. Corp., 02 Civ. 1818 (AGS), 2003 WL 289617 at *2 (S.D.N.Y. Feb. 11, 2003). See Phillip v. University of Rochester, 316 F.3d 291
, 293-94 (2d Cir. 2003) ("We will affirm a dismissal on the face of the complaint only if `it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'"), quoting Conley v. Gibson, 355 U.S. 41
, 45-46 (1957); Bruce v. United States Dep't of Justice, 314 F.3d 71
, 73-74 (2d Cir. 2002); Holowecki v. Federal Express Corp., 02 Civ. 3355 (LMM), 2002 WL 31260266 at *2 (S.D.N.Y. Oct. 9, 2002).
Defendants first argue that plaintiff's claims pursuant to Titles I and II of the ADA, the Rehabilitation Act, New York Executive Law Sections 292(5) and 296, and Section 8-107 of the Administrative Code of the City of York should be dismissed because they are untimely.
Defendants argue that plaintiff's Title I claim brought against the NYCBOE is barred because plaintiff did not file a charge of discrimination with the EEOC within three-hundred days of the alleged failure to accommodate (Defs.' Mem. at 4) Defendants argue that "[i]t is clear that the actual adverse employment action that plaintiff complains of, that is, the effective termination of her employment due to the NYCBOE's alleged failure to accommodate her disability by providing her with line of duty injury pay in 1992 or by providing her with an assignment to a suitable location . . . occurred approximately six years prior to her filing the charge of discrimination" (Defs.' Mem. at 5).*fn3
Next, defendants argue that plaintiff's claims under Title II, the Rehabilitation Act, New York Executive Law Sections 292(5) and 296, and Section 8-107 of the Administrative Code of the City of York are each barred by a three-year statute of limitations (Defs.' Mem. at 16-18). Again, defendants maintain that the statute of limitations began to run in 1992, when plaintiff "ceased receiving a salary from the NYCBOE and did not receive an assignment that she believed accommodated her purported disability" (Defs.' Mem. at 17; see Defs.' Mem. at 16-17, 18).
In arguing against the motion to dismiss, plaintiff alleges that her claims "not only accrued in 1992, but thereafter as well, given, inter alia, that plaintiff was on the [NYCBOE's] payroll until 1997, continued to accrue pension benefits and credits until 1997, and continued to receive health insurance coverage until 1997 when, on December 10, plaintiff was notified that her employment was terminated" (Pl.'s Mem. at 21). Plaintiff further states:
Moreover — and now as conceded by defendants
— without plaintiff's actual termination from
employment, plaintiff's claims against defendant
continue to accrue. Thus, plaintiff's claims of
discrimination and retaliation against defendants
continued not just for defendants' acts from 1992
until 1997 when plaintiff was informed of her
termination, but continue to this day with defendants'
continuing failure to provide a reasonable
accommodation, whether in the form of an appropriate
job or line-of-duty injury pay, and appropriate health
insurance and pension benefits.
(Pl.'s Mem. at 21-22; see Pl.'s Mem. at 11-15, 17, 18-19). Thus, plaintiff alleges that the defendants' acts constitute a continuing violation which render her claims timely. Accordingly, in assessing defendants' timeliness arguments, dismissal is appropriate only if it is clear that plaintiff can prove no set of facts supporting her claim of a continuing violation.
In order to bring a claim under the ADA, a plaintiff must file a claim with the EEOC within 300 days of the alleged discrimination. See 42 U.S.C. § 12117 (a) and 42 U.S.C. § 2000e-5 (e) (1); Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325 (2d Cir. 1999); Harris v. City of New York, 186 F.3d 243, 247-48 (2d Cir. 1999); Gill v. City of New York, 00 Civ. 8332 (KNF), 2003 WL 941607 at *7 (S.D.N.Y. March 10, 2003); Richburg v. City of New York Dep't of Corr., 97 Civ. 9515 (JSR), 2003 WL 151985 at *1 (S.D.N.Y. Jan. 22, 2003); Hawana v. City of New York, 230 F. Supp.2d 518, 525 (S.D.N.Y. 2002). Plaintiff allegedly filed a charge with the EEOC on October 6, 1998 (Am. Compl. ¶ 7). Thus, defendants claim that any alleged incidents of discrimination that occurred prior to December 10, 1997 (300 days prior to October 6, 1998) are time barred. Similarly, defendants argue that since plaintiff's claims under Title II of the ADA, the Rehabilitation Act, New York Executive Law Sections 292(5) and 296, and Section 8-107 of the Administrative Code of the City of New York arose in 1992, these claims are untimely, as the statute of limitations expired three years later, in 1995.
Plaintiff argues that defendants' actions should be considered part of an ongoing policy of discrimination that continues to the present day under the "continuing violation" doctrine. When viewed as part of an ongoing policy of discrimination, plaintiff contends that her claims are timely.
Under [the continuing violation] doctrine, if a
plaintiff has experienced a "`continuous practice and
policy of discrimination, . . . the commencement of
the statute of limitations period may be delayed until
the last discriminatory act in furtherance of it.'"
Gomes v. Avco Corp., 964 F.2d 1330, 1333 (2d Cir.
1992) (quoting Miller v. International Telephone
& Telegraph Corp., 755 F.2d 20, 25 (2d Cir.),
cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d
122 (1985)); see also Association Against
Discrimination in Employment, Inc. v. City of
Bridgeport, 647 F.2d 256, 274-75 (2d Cir. 1981)
(consistent pattern of discriminatory hiring practices
from 1971 to 1975 held to constitute a continuing
violation), cert. denied, 455 U.S. 988, 102 S.Ct.
1611, 71 L.Ed.2d 847 (1982). "If a continuing
violation is shown, a plaintiff is entitled to have a
court consider all relevant actions allegedly taken
pursuant to the employer's discriminatory policy or
practice, including those that would otherwise be time
barred." Van Zant v. KLM Royal Dutch Airlines,
80 F.3d 708, 713 (2d Cir. 1996); see, e.g., Lambert
v. Genesee Hospital, 10 F.3d 46, 53 (2d Cir. 1993)
("Under the continuing violation exception to the
Title VII limitations period, if a Title VII plaintiff
files an EEO charge that is timely as to any
incident of discrimination in furtherance of an
ongoing policy of discrimination, all claims of acts
of discrimination under that policy will be timely
even if they would be untimely standing alone."),
cert. denied, 511 U.S. 1052, 114 S.Ct. 1612, 128
L.Ed.2d 339 (1994). Although the continuing violation
exception is usually associated with a discriminatory
policy, rather than with individual instances of
discrimination, and although acts so "isolated in
time . . . from each other . . . [or] from the timely
allegations as to break the asserted continuum of
discrimination" will not suffice, Quinn v. Green Tree
Credit Corp., 159 F.3d at 766, a continuing violation
may be found "where specific and related instances of
discrimination are permitted by the employer to
continue unremedied for so long as to amount to a
discriminatory policy or practice." Cornwell v.
Robinson, 23 F.3d 694, 704 (2d Cir. 1994).
Fitzgerald v. Henderson, 251 F.3d 345
, 359 (2d Cir. 2001). See also De La Fuente v. DCI Telecomms., Inc., 01 Civ. 3365 (CM), 2003 WL 832009 at *13 (S.D.N.Y. March 4, 2003); Branch v. Guilderland Cent. Sch. Dist., 239 F. Supp.2d 242, 253 (N.D.N.Y. 2003); Stalter v. Board of Co-op. Educ. Servs. of Rockland County, 235 F. Supp.2d 323, 332 (S.D.N.Y. 2002); Figueroa v. City of New York, 198 F. Supp.2d 555, 564 (S.D.N.Y. 2002).
"`As a general rule, courts in the Second Circuit have viewed continuing violation arguments with disfavor.'" Bernstein v. The MONY Group, Inc., 228 F. Supp.2d 415, 418 (S.D.N.Y. 2002), quoting Curtis v. Airborne Freight Corp., 87 F. Supp.2d 234, 244 (S.D.N.Y. 2000). See also Branch v. Guilderland Cent. School Dist., supra, 239 F. Supp.2d at 253; Marinelli v. Chao, 222 F. Supp.2d 402, 413 (S.D.N.Y. 2002). "[I]t has been frequently noted that the continuing violation doctrine is disfavored in this circuit and will be applied only upon a showing of compelling circumstances." Salgado v. City of New York, 00 Civ. 3667 (RWS), 2001 WL 290051 at *5 (S.D.N.Y. March 26, 2001), citing Katz v. Beth Israel Med. Ctr., 95 Civ. 7183 (AGS), 2001 WL 11064 at *8 (S.D.N.Y. Jan. 4, 2001) and Findlay v. Reynolds Metals Co., Inc., 82 F. Supp.2d 27, 37 (N.D.N.Y. 2000).
The continuing violation doctrine can be satisfied if plaintiff establishes either an ongoing practice or policy of discrimination or the existence of specific acts of discrimination that are permitted by the employer to go unremedied for so long that they amount to such a policy or practice. See Fitzgerald v. Henderson, supra, 251 F.3d at 359. Plaintiff appears to be alleging that defendants' conduct satisfies the second theory.*fn4 Plaintiff's complaint states that "[c]ontinuing until the [NYCBOE] informed her on December 10, 1997 that her employment was terminated, the [NYCBOE] never accorded [her] that reasonable accommodation for any date following its 1992 determinations of line of duty injury and eligibility for line of duty injury pay, engaging in a policy or practice of not according [her] any reasonable accommodation during her continuing employment" (Am. Compl. ¶ 41; see Am. Compl. ¶ 46).
Harris v. City of New York, supra, 186 F.3d 243, involved facts similar to those alleged here. In that case, the plaintiff, a New York City Police Department detective, third grade, claimed, among other things, that he was continuously denied a promotion to detective, second grade, during his employment on the basis of a disability that occurred in the line of duty. In arguing that he was subjected to a continuing violation, the plaintiff alleged that defendant's prolonged inaction was sufficient conduct amounting to a policy or practice. 186 F.3d at 249-50.
The Court of Appeals reversed a decision by the District Court granting a motion to dismiss this aspect of plaintiff's claim, stating:
We have made it clear that a continuing violation
cannot be established merely because the claimant
continues to feel the effects of a time-barred
discriminatory act (Lightfoot v. Union Carbide Corp.,
110 F.3d 898, 907 (2d Cir. 1997)). Nor can an
otherwise barred claim be rendered timely by the mere
continuation of the claimant's employment (Delaware
State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct.
498, 66 L.Ed.2d 431 (1980)). Rather the claimant must
allege both the existence of an ongoing policy of
discrimination and some non-time-barred acts taken in
furtherance of that policy.
This case presents a particularly difficult
situation in that regard, because Harris contends that
the Police Department's inaction — its repeated
failure to consider him for promotion — is the
"act" in furtherance of the continuing policy of
discrimination that saves Harris' claim from
dismissal. In contrast to most failure-to-promote
cases, Harris does not allege that his employer failed
to promote him on a particular date. So it is unclear
whether Harris' superiors made a one-time decision
soon after his injury not to consider him for
promotion (a single completed act of discrimination
that had continuing effects only due to his continued
employment) or whether they continuously failed to act
(including some discriminatory decision arrived at
within the statute of limitations) in furtherance of a
continuing discriminatory policy. All that Harris
alleges is that he was eligible for the promotion
until his retirement and that the Police Department
failed to grant it to him throughout that time
period, pursuant to its policy of not promoting
restricted duty officers. Nothing is said as to the
precise nature or timing of the employer's last
failure to act.
Were we reviewing a summary judgment motion, we
would have more facts before us to indicate what sort
of "inaction" the Police Department engaged in and
when. But for now we must construe Harris' Amended
Complaint liberally, with a Rule 12(b)(6) dismissal
being appropriate only if "it appears beyond doubt
that the plaintiff can prove no set of facts in
support of his claim which would entitle him to
relief" (Conley v. Gibson, 355 U.S. 41, 45-46, 78
S.Ct. 99, 2 L.Ed.2d 80 (1957)).
What that means in the statute of limitations
context is that dismissal is appropriate only if a
complaint clearly shows the claim is out of time. And
consistently with the Amended Complaint it is possible
that Harris could demonstrate some discriminatory act
that did occur within the statute of limitations, so
that his claim would not be time-barred (see
Lightfoot, 110 F.3d at 907, stating that "the mere
allegation of the existence of such a policy would be
sufficient to withstand a challenge for failure to
state a claim"; Egelston v. State Univ. College at
Geneseo, 535 F.2d 752, 755 (2d Cir. 1976) (same)).
Harris v. City of New York, supra, 186 F.3d at 250 (emphasis in original). See also Pustilnik v. Hynes, 99-CV-4087 (JG), 2000 WL 914629 at *5 (E.D.N.Y. June 27, 2000) ("Although a `mere allegation of the existence of such a policy' may not survive a summary judgment motion, it is `sufficient to withstand a challenge for failure to state a claim.'"), quoting Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997); Brown-Alleyne v. White, 96-CV-2507, 1999 WL 1186809 at *6 (E.D.N.Y. Oct. 11, 1999).
Like the situation presented in Harris, plaintiff alleges discrimination in the form of a failure to act — failure to accommodate her disability and failure to pay her line-of-duty injury pay — that may have been a one-time discriminatory decision or a continuous failure to act.*fn5 Since plaintiff has alleged the existence of a policy or practice amounting to a continuing violation and has alleged at least one act that is not time barred — the notification of her termination on December 10, 1997 — it would be premature at this stage to conclude that plaintiff can prove no set of facts which would entitle her to relief. Therefore, this aspect of defendants' motion to dismiss is denied.*fn6
C. Title II of the ADA
Next, defendants argue that even if plaintiff's Title II claims are timely, "plaintiff fails to state a claim under Title II of the ADA because Title I of the ADA provides the exclusive remedy for claims of employment discrimination" (Defs.' Mem. at 6). Plaintiff argues, however, that "the well-reasoned decisional precedent by courts in this circuit, the circuit courts elsewhere, as well as the regulations promulgated by the U.S. Department of Justice, all conclusively establish the cogency [sic] of plaintiff's claims not only under Title I of the ADA as against the [NYCBOE], but under Title II as against each of the defendants" (Pl.'s Mem. at 15-16).
Title I of the ADA protects qualified individuals with disabilities against employment discrimination in areas such as application procedures, hiring, promotions, compensation, training, and termination. See 42 U.S.C. § 12112 (a). Title II, in comparison, provides that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132 (emphasis added).
As explained by the Honorable Arthur D. Spatt, United States District Judge, in Winokur v. Office of Court Admin., 190 F. Supp.2d 444, 449 (E.D.N.Y. 2002):
The  issue is whether an employee of a public
entity may bring an employment discrimination claim
under Title II. Apparently, the Second Circuit has not
yet resolved this issue. However, district courts in
this circuit have concluded that such a claim is
permitted under Title II. Simms v. City of New York,
160 F. Supp.2d 398, 400 n. 1 (E.D.N.Y. 2001) (finding
that Title II prohibits employment discrimination on
the basis of a disability by a public entity); Rome
v. MTA/New York City Transit, 1997 WL 1048908, *5
(E.D.N.Y. Nov. 18, 1997) (finding that Title II
prohibits employment discrimination on the basis of
disability by public entities); Graboski v. Giuliani,
937 F. Supp. 258, 269 (S.D.N.Y. 1996) ("Title I and
Title II analysis coalesce in employment
Moreover, other circuits have concluded that Title
II permits an employment discrimination claim against
a public entity. Bledsoe v. Palm Beach County Soil and
Water Conservation Dist., 133 F.3d 816, 820 (11th
Cir. 1998), cert. denied, 525 U.S. 826, 119 S.Ct. 72,
142 L.Ed.2d 57 (1998); Doe v. Univ. of Md. Med. Sys.
Corp., 50 F.3d 1261, 1264-65 (4th Cir. 1995). But see
Zimmerman v. Oregon Dep't of Justice, 170 F.3d 1169,
1173 (9th Cir. 1999) (finding that Title II was not
applicable in the employment context).
Furthermore, Second Circuit precedent suggests that
it would support the interpretation that an employee
of a public entity may bring an employment
discrimination claim under Title II. See Innovative
Health Sys., Inc. v. City of White Plains, 117 F.3d 37,
44-45 (2d Cir. 1997) ("[T]he language of Title II's
antidiscrimination provision does not limit [its]
coverage to conduct that occurs in the `programs,
services, or activities' of [a public entity].
Rather, it is a catch-all phrase that prohibits all
discrimination by a public entity, regardless of the
context. . . .").
In addition, the legislative history of the ADA also
reveals that Congress intended Title II to apply to
employment discrimination by States and local
agencies. See H.R.Rep. No. 101-485 (III), at 50
(1990), reprinted in 1990 U.S.C.C.A.N. 445, 473.
Finally, the regulations promulgated by the Department
of Justice suggest that a plaintiff may bring an
employment discrimination suit against a state agency
under Title II. See 28 C.F.R. § 35.140 (b)(1).
Accordingly, the Court finds that the plaintiff may
bring his claim for employment discrimination against
OCA under Title II of the ADA.
See also Magee v. Nassau County Med. Ctr., 27 F. Supp.2d 154, 159 (E.D.N.Y. 1998); Downs v. Massachusetts Bay Transp. Auth., 13 F. Supp.2d 130, 134-35 (D. Mass. 1998); Hernandez v. City of Hartford, 959 F. Supp. 125, 132-33 (D. Conn. 1997); Finley v. Giacobbe, 827 F. Supp. 215, 219 n. 3 (S.D.N.Y. 1993). Research has disclosed no authority in this District reaching a contrary result.
Although defendants set forth an extensive argument that Title II of the ADA does not provide a remedy for employment discrimination, the weight of authority supports plaintiff's interpretation of the applicability of Title II to employment discrimination claims. Therefore, I conclude that plaintiff may bring her claims against the defendants under Title II of the ADA.
D. retaliation Claim
1. Prima Facie Case
Defendants next argue that "plaintiff's retaliation claims fail because defendants have not treated plaintiff any differently since she filed the charge of discrimination or commenced this action" (Defs.' Mem. at 19). Therefore, defendants contend that plaintiff cannot establish one of the elements of a prima facie case of retaliation, namely, that there is a casual connection between the filing of her discrimination charge and an adverse employment action (Defs.' Mem. at 19-20).
The Supreme Court has recently concluded that in order to survive a motion to dismiss, the complaint in a Title VII employment action need not allege facts sufficient to establish a prima facie case of discrimination.
[I]mposing the [Second Circuit] Court of Appeals'
heightened pleading standard in employment
discrimination cases conflicts with Federal Rule of
Civil Procedure 8(a)(2), which provides that a
complaint must include only "a short and plain
statement of the claim showing that the pleader is
entitled to relief." Such a statement must simply
"give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it
rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct.
99, 2 L.Ed.2d 80 (1957). This simplified notice
pleading standard relies on liberal discovery rules
and summary judgment motions to define disputed facts
and issues and to dispose of unmeritorious claims.
See id., at 47-48; Leatherman v. Tarrant County
Narcotics Intelligence and Coordination Unit,
507 U.S. 163, 168-169 (1993).
Swierkiewicz v. Sorema N.A., 534 U.S. 506
, 512 (2002). See Phillip v. University of Rochester, supra, 316 F.3d at 298-99; Phelps v. Kapnolas, 308 F.3d 180
, 186-87 (2d Cir. 2002); Simpri v. New York City Agency-for Children's Servs., 00 Civ. 6712 (SAS), 2003 WL 169803 at *2-*3 (S.D.N.Y. Jan. 23, 2003); Salerno v. City Univ. of New York, 99 Civ. 11151 (NRB), 2002 WL 31856953 at *2-*3 (S.D.N.Y. Dec. 19, 2002). "This simplified pleading standard applies with equal force to retaliation claims." Pearson-Fraser v. Bell Atlantic, 01 Civ. 2343 (WK), 2003 WL 43367 at *3 (S.D.N.Y. Jan. 6, 2003), citing Madera v. Metropolitan Life Ins. Co., 99 Civ. 4005 (MBM), 2002 WL 1453827 at *7 (S.D.N.Y. July 3, 2002).
Applying the relevant standard, plaintiff's complaint satisfies the liberal pleading requirements set forth in Swierkiewicz. In fact, plaintiff's complaint of twenty-eight pages goes well beyond the requirement of "a short and plain statement of the claim" pursuant to Fed.R.Civ.P. 8(a)(2). Plaintiff clearly alleges the facts giving rise to her claims for retaliation and sets forth eleven adverse actions allegedly committed by the defendants as a result of plaintiff's complaints (Am. Compl. ¶ 59). Since these allegations provide defendants with fair notice of her claims and the grounds upon which they rest, plaintiff's retaliation claims survive defendants' motion to dismiss. Swierkiewicz v. Sorema N.A., supra, 534 U.S. at 514.
2. Additional Arguments
Defendants make two additional arguments in support of their motion to dismiss plaintiff's retaliation claims.
First, defendants argue that "[b]ecause plaintiff was not on active pay status, plaintiff was not eligible for the benefits claimed and the retaliation claims against TRS and the City should be dismissed" (Defs.' Mem. at 20). Defendants' argument is improper on a motion to dismiss because plaintiff alleges that she was on "active employment status" (Am. Compl. ¶ 42), and all allegations asserted in the complaint must, at this stage, be accepted as true. George v. New York City Health & Hosp. Corp., supra, 2003 WL 289617 at *2.
Second, defendants argue that the majority of retaliatory acts alleged in plaintiff's complaint occurred in 1991 or 1992, "well outside of the applicable statutes of limitation and are therefore time-barred" (Defendants' Memorandum of Law in [Further] Support of Their Motion to Dismiss the Second Amended and Supplemental Complaint, dated September 4, 2002 ("Defs.' Reply Mem."), at 8). As addressed in detail above, because plaintiff alleges a continuing violation, defendants' timeliness arguments are premature.
Accordingly, defendants' motion to dismiss plaintiff's retaliation claims is denied.
E. Plaintiff's Failure File a Notice of Claim
Next, defendants allege that "plaintiff's failure to file a notice of claim bars her claims under the New York State Human Rights Law, the New York City Human Rights Law, and her contract claim" against the NYCBOE (Defs.' Mem. at 21). Specifically, defendants argue that plaintiff was required to file a notice of claim under New York Education Law § 3813(1), which provides, in pertinent part, that:
No action or special proceeding, for any cause
whatever . . . or claim against the district or any
such school, or involving the rights or interests of
any district or any such school shall be prosecuted or
maintained against any school district, board of
education . . . unless it shall appear by and as an
allegation in the complaint or necessary moving papers
that a written verified claim upon which such action
or special proceeding is founded was presented to the
governing body of said district or school within three
months after the accrual of such claim, and that the
officer or body having the power to adjust or pay said
claim has neglected or refused to make an adjustment
or payment thereof for thirty days after such
presentment. In the case of an action or special
proceeding for monies due arising out of contract,
accrual of such claim shall be deemed to have occurred
as of the date payment for the amount claimed was
1. Discrimination Claims
The applicability of Section 3813(1) to discrimination claims has been addressed in Biggers v. Brookhaven-Comsewogue Union Free Sch. Dist., 127 F. Supp.2d 452, 454-55 (S.D.N.Y. 2001).
The New York Court of Appeals has interpreted the
statute as follows: "The Legislature has spoken
unequivocally that no action or proceeding may be
prosecuted or maintained against any school district
or board of education unless a notice of claim has
been `presented to the governing body,' and this court
may not disregard its pronouncement." Parochial Bus
Sys., Inc. v. Board of Educ., 60 N.Y.2d 539, 549,
470 N.Y.S.2d 564, 569, 458 N.E.2d 1241 (1983)
(citations omitted) Indeed, the Court of Appeals has
"always insisted that statutory requirements mandating
notification to the proper public body or official
must be fulfilled." See id. at 547-48, 470 N.Y.S.2d 564,
458 N.E.2d 1241 (citing Chesney v. Board of Educ.,
5 N.Y.2d 1007, 185 N.Y.S.2d 263, 158 N.E.2d 125
(1959); Munroe v. Booth, 305 N.Y. 426, 113 N.E.2d 546
(1953)). Thus, a failure to present a claim within
ninety days of its accrual is a fatal defect. See id.
at 547; Board of Educ. of Union Free School Dist. No.
2 v. State Division of Human Rights, 44 N.Y.2d 902,
904, 407 N.Y.S.2d 636, 637, 379 N.E.2d 163 (1978)
("Noncompliance with [the notice] requirement likewise
bars the right to the relief sought."); see also,
Pinaud v. County of Suffolk, 798 F. Supp. 913, 925
(E.D.N.Y. 1992) (applying notice of claim rules to a
state claim brought in federal court pursuant to
court's supplemental jurisdiction).
Nevertheless, the Court of Appeals has carved out
one exception to the notice requirement. The
prerequisites of subdivision 1 of section 3813 apply
only to those actions which seek the enforcement of
private rights, as opposed to those actions that seek
vindication of a public interest. See Union Free
School Dist. No. 6 v. New York State Human Rights
Appeal Board, 35 N.Y.2d 371, 379-80, 362 N.Y.S.2d 139,
145, 320 N.E.2d 859 (1974); see also Board of Educ.,
44 N.Y.2d at 904, 407 N.Y.S.2d 636, 379 N.E.2d 163.
Although "[a]ll actions brought to enforce civil
rights can be said to be in the public interest,"
Mills v. County of Monroe, 59 N.Y.2d 307, 311,
464 N.Y.S.2d 709, 711, 451 N.E.2d 456 (1983), actions
that seek relief for a similarly situated class of the
public are deserving of special treatment, such as
relief from the notice requirement. See id. at
311-12, 464 N.Y.S.2d 709, 451 N.E.2d 456.
See Walker v. City of New York, 98-CV-2695 (SJ), 2002 WL 31051534 at *8 (E.D.N.Y. July 22, 2002) (noting the distinction for notice of claim purposes between actions that seek enforcement of private rights versus those which seek to vindicate a public interest).
The relevant question, therefore, is whether plaintiff seeks enforcement of a private right or seeks to vindicate a public interest. Defendants argue that plaintiff is not "challenging a policy which, if overruled, would vindicate a public interest. [Rather], plaintiff is alleging only that defendants did not provide her with a reasonable accommodation, wrongfully terminated her employment, and is seeking a monetary award" (Defs.' Reply Mem. at 12). Plaintiff, on the other hand, argues that she is seeking to vindicate a public interest,
"namely, to identify the destructive and
environmentally hazardous conditions at a public
school, the injuries suffered as a result thereof by
teachers and students alike (including plaintiff's own
injuries and resultant disability culminating in
defendants' discriminatory and retaliatory treatment
of her), and efforts not only to ameliorate the
situation but to force public attention to the
(Pl.'s Mem. at 22).
Here, it is clear that plaintiff's allegations of discriminatory conduct refer only to actions taken with respect to her alone. In her complaint, plaintiff specifically notes that "[t]wo other [NYCBOE] employees received line of duty injury pay for injuries sustained at PS 158 at or about the same time as [she] sustained her injuries and as a result of the environmental hazards which befell [her]" (Am. Compl. ¶ 46). Moreover, plaintiff's prayer for relief seeks money damages for alleged wages or back pay, along with any other benefits, due to her alone. See Biggers v. Brookhaven-Comsewogue Union Free Sch. Dist., supra, 127 F. Supp.2d at 455; Picciano v. Nassau County Civil Serv. Comm'n, 290 A.D.2d 164, 169, 736 N.Y.S.2d 55, 60 (2d Dep't 2001) (noting that "the disposition of the plaintiff's case will not directly affect the rights of others, particularly since the extent of his alleged disability and any job accommodations would be an individualized determination"); In re Saranac Lake Cent. Sch. Dist. v. New York State Div. of Human Rights, 226 A.D.2d 794, 795, 640 N.Y.S.2d 303 (3rd Dep't 1996) (holding that plaintiff alleging gender-based discrimination sought to enforce private right because complaint alleged discriminatory conduct and sought relief relating only to plaintiff). Accordingly, I find that plaintiff's discrimination claims under New York State and New York City law are not exempt from the notice of claim requirement of Section 3813(1).
2. Contract Claims
Similarly, under Section 3813(1) plaintiff was required to file a notice of claim with respect to her contract claim against the NYCBOE. Plaintiff does not dispute that she failed to file a notice of claim. Therefore, plaintiff's contract claim against the NYCBOE is also barred. See Flynn v. New York City Bd. of Educ., 00 Civ. 3775 (LAP), 2002 WL 31175229 at *9-*10 (S.D.N.Y. Sept. 30, 2002).*fn7
3. Plaintiff's Request for Leave to File a Notice of Claim
Plaintiff argues that despite her failure to file a notice of claim, "the Court [has] discretion to extend the time [to file] in situations where it is found that the notice of claim was not served" (Pl.'s Mem. at 23). In support of her argument, plaintiff claims that since the defendants "have been on notice for years" of her claims, no prejudice to defendants will result if she is granted leave to file a notice of claim (Pl.'s Mem. at 23).
The provisions of Section 3813 (2-a) provide that a court may extend the time to serve a notice of claim.
The extension shall not exceed the time limited for
the commencement of an action by the claimant against
any district or any such school. In determining
whether to grant the extension, the court shall
consider, in particular, whether the district or
school or its attorney or its insurance carrier or
other agent acquired actual knowledge of the essential
facts constituting the claim within the time specified
in subdivision one of this section or within a
reasonable time thereafter. The court shall also
consider all other relevant facts and circumstances,
including: whether the claimant was an infant, or
mentally or physically incapacitated, or died before
the time limited for service of the notice of claim;
whether the claimant failed to serve a timely notice
of claim by reason of his justifiable reliance upon
settlement representations made by an authorized
representative of the district or school or its
insurance carrier; whether the claimant in serving a
notice of claim made an excusable error concerning the
identity of the district or school against which the
claim should be asserted; and whether the delay in
serving the notice of claim substantially prejudiced
the district or school in maintaining its defense on
An application for leave to serve a late notice
shall not be denied on the ground that it was made
after commencement of an action against the district
N.Y. Educ. L. § 3813 (2-a).
Although the parties' briefs address one of the factors relevant to a motion to extend the time within which a notice of claim may be filed, plaintiff has not formally moved for such relief, nor has she addressed the balance of the factors set forth in Section 3813 (2-a). Rather than address this issue in a piece meal fashion, I conclude that defendants motion to dismiss plaintiff's claims under the New York State Human Rights Law and New York City Administrative Code and plaintiff's breach of contract claims against the NYCBOE should be granted at this time without prejudice to a further application by plaintiff to extend the time for filing a notice of claim. This procedure will permit all issues enumerated in Section 3813 (2-a) to be resolved at one time. See EUA Cogenex Corp. v. North Rockland Cent. Sch. Dist., 124 F. Supp.2d 861, 864 (S.D.N.Y. 2000) (noting that upon formal application, a district court may grant plaintiff leave to file a late notice of claim); Courtemanche v. Enlarged City Sch. Dist. of City of Middletown, N.Y., 686 F. Supp. 1025, 1033 (S.D.N.Y. 1988) ("If a formal application [for leave to file a late notice of claim] is made by plaintiff, we will, of course, give it proper consideration. A cryptic reference in plaintiff's brief to the extension provision, however, will not satisfy in lieu of a formal application.").
F. Failure to Allege an Injury-in-Fact under the PHSA
Lastly, defendants argue that plaintiff "has failed to allege an injury in fact due to defendants' purported violation of the Public Health Services Act" (Defs.' Mem. at 23).
The PHSA, 42 U.S.C. § 300bb et seq., governs the termination of health coverage by government group health plans. Section 300bb-1 requires that "each group health plan . . . shall provide, in accordance with this subchapter, that each qualified beneficiary who would lose coverage under the plan as a result of a qualifying event is entitled, under the plan, to elect, within the election period, continuation coverage under the plan." The term "qualifying event" includes termination. 42 U.S.C. § 300bb-3. Section 300bb-7 provides that "[a]ny individual who is aggrieved by the failure of a State, political subdivision, or agency or instrumentality thereof, to comply with the requirements of this subchapter may bring an action for appropriate equitable relief."
Defendants' entire argument consists of the following two paragraphs:
Plaintiff asserts that, in violation of the Public
Health Services Act, 42 U.S.C. § 300bb-7, she was
denied the opportunity to continue her health coverage
or to enroll in a conversion health plan. Plaintiff,
however, has failed to allege that she would have
either continued her health coverage or enrolled in a
conversion health plan. Moreover, plaintiff has not
alleged that she suffered any injury due to being
denied the opportunity to either continue her health
insurance coverage or enroll in a health plan. Because
plaintiff has not alleged that she sustained an injury
in fact, her claim under the Public Health Services
Act should be dismissed.
(Defs.' Mem. at 23).
Notwithstanding plaintiff's statement that she "was
injured" by defendants' purported failure to offer her
the opportunity to continue her health benefits in
violation of the Public Health Services Act,
42 U.S.C. § 300bb-7 (the "PHSA"), plaintiff has
not alleged that she suffered any cognizable injury by
such action. The PHSA only allows for actions for
equitable relief. As such, because the time period for
which plaintiff could have obtained coverage has
expired, plaintiff can not obtain injunctive relief
allowing her to exercise her rights under the PHSA at
this late date. Plaintiff has not alleged that she
would have elected to continue her coverage or enroll
in a conversion health plan. Moreover, plaintiff has
not alleged that she suffered from any injury due to
being denied the opportunity to either continue her
health insurance coverage or enroll in a conversion
health plan. Because plaintiff has not alleged that
she sustained an injury in fact, her claim under the
Public Health Services Act should be dismissed.
(Defs.' Reply Mem. at 6-7).
Plaintiff alleges that she was injured because NYCEBP's termination of her medical coverage without notification denied her the opportunity to either elect continuation coverage (Am. Compl. ¶ 91) or to enroll in a conversion health plan (Am. Compl. ¶ 92). Moreover, plaintiff requests relief in the form of "medical insurance benefits coverage" (Am. Compl. ¶ 27).
Defendants' arguments are unpersuasive for three reasons. First, defendants cite no legal authority for the proposition that a plaintiff asserting a claim under Section 300bb-7, must allege that she would have either continued her health coverage or enrolled in a conversion plan had she been properly notified. Although plaintiff must, no doubt, prove an injury, defendants have simply failed to establish the pleading requirement on which their argument is based. Second, assuming that plaintiff was wrongfully denied continuation coverage following her discharge, a question of fact remains as to plaintiff's injury and possible remedies. See Mansfield v. Chicago Park Dist. Group Plan, 946 F. Supp. 586, 592 (N.D.Ill. 1996) ("equitable relief may include an award of money as restitution for pecuniary losses caused by a defendant, where such relief is necessary to make a plaintiff whole"), citing In re Unisys Corp. Retiree Medical Benefit "ERISA" Litig., 57 F.3d 1255, 1267-69 (3d Cir. 1995), Reich v. Continental Casualty Co., 33 F.3d 754, 755-56 (7th Cir. 1994), and UIU Severance Pay Trust Fund v. Local Union No. 18-U, 998 F.2d 509, 512-13 (7th Cir. 1993). See also Rholdon v. Bio-Medical Applications of Louisiana, Inc., 868 F. Supp. 179, 182-83 (E.D.La. 1994) (denying summary judgment where "material issues of fact exist regarding any damages [plaintiff] may have suffered during the lapse in coverage"). Third, I disagree with defendants that because the time period for which plaintiff could have obtained continuation coverage has allegedly expired, she is therefore unable to obtain injunctive relief. Defendants' argument purports to transform the period of continued coverage into a statute of limitations for claims arising under the PHSA. Since accepting this argument would drastically limit the relief that could be afforded under the PHSA and considering that defendants point to no authority in support of their position, I find that plaintiff is not foreclosed in obtaining relief on this claim.
Accordingly, defendants' motion to dismiss plaintiff's claims arising under the PHSA is denied.
Accordingly, for all the foregoing reasons, defendants' motion to dismiss plaintiff's second amended and supplemental complaint is granted with respect to plaintiff's claims against the NYCBOE for violations of New York Executive Law Sections 292(5) and 296, Section 8-107 of the Administrative Code of the City of New York, and for breach of contract, without prejudice to a future motion by plaintiff to file a late notice of claim against the NYCBOE. Defendants' motion is denied in all other respects.