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March 31, 2003


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.

II. Facts

A. Background

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 free.
(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 ...

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