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September 6, 2005.


The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge


Plaintiff Deborah Hanig brings this action against defendant the Yorktown Central School District (the "School District"). Plaintiff seeks relief under: (1) 42 U.S.C. § 1983, alleging violations of the First and Fourteenth Amendments to the United States Constitution, and violations of the New York State Constitution; (2) the Americans with Disabilities Act (the "ADA"), 42 U.S.C. §§ 1201 et seq., alleging that defendant retaliated against her for filing a complaint of discrimination with the United States Equal Employment Opportunity Commission (the "EEOC"); (3) the New York Human Rights Law (the "NYHRL"), N.Y. EXEC. LAW § 296, alleging retaliation; and (4) New York State law for breach of contract.*fn1 Defendant now moves to dismiss the Amended Complaint pursuant to FED. R. CIV. P. 12(b)(1) for lack of subject matter jurisdiction and pursuant to FED. R. CIV. P. 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons stated hereinafter, defendant's Rule 12(b)(1) motion is denied, and defendant's Rule 12(b)(6) motion is granted.


  Plaintiff is a resident of the state of New York and was, at all times relevant to the Amended Complaint, employed by the School District as a guidance counselor at Yorktown High School. (Am. Complt. ¶ 3.) Plaintiff holds a Bachelors Degree from the State University of New York at Binghamton and a Masters of Art and Masters in Education from Columbia University Teachers College. (Id.) In February of 2000, plaintiff obtained a Provisional Public School Teachers Certificate from the University of the State of New York, Education Department, which certified her as a school counselor. (Id. ¶ 7.) The School District is located in the State of New York. (Id. ¶ 4.)

  In July 2000, plaintiff was hired by the School District as high school guidance counselor. (Id. ¶ 5.) Plaintiff's employment commenced in August 2000, and her job responsibilities included: "counseling students regarding personal or academic issues, assisting students in researching and applying to college, [and] sending letters of recommendation for students to prospective colleges." (Id. ¶ 6.) In addition, plaintiff served as class advisor for the Yorktown High School Class of 2005, advisor to the Diversity Club and was a member of a community service committee. (Id.) Throughout the first two years of plaintiff's employment with the School District she received complimentary and positive evaluations from administrators at Yorktown High School including Principal Dan Brenner, Assistant Principal Randall Glading, and Assistant Principal Wallace F. Maher, Jr.*fn3 (Id.) However, in June of 2002, plaintiff's supervisor, Kay Buckley, Teacher Coordinator of School Counseling, advised her that Brenner had seen a recommendation letter that plaintiff wrote for a student and thereafter "commented upon the grammar [plaintiff] used in the letter." (Id. ¶ 9.) During that conversation, plaintiff informed Buckley that she suffered from learning disabilities known as dyslexia and dysgraphia which affected her ability to write. (Id. ¶ 10.) In response, Buckley instructed plaintiff to give "special attention to the grammar used in recommendations and other correspondence coming from the school." (Id.) On October 27, 2002, Brenner met with plaintiff to discuss issues relating to her writing skills. (Id.) During that meeting, Brenner asked plaintiff not to send out any written material without first showing it to himself for Buckley to ensure that it was of adequate quality. (Id.) After meeting with Brenner, plaintiff contacted the writing center at Columbia University and hired a doctoral candidate to review her writing. (Id. ¶ 11.) Plaintiff states that from that point forward, both the doctoral candidate as well as a specialist dealing with learning disability writing problems reviewed all of plaintiff's letters before she sent them to Buckley or Brenner. (Id.)

  In a memorandum dated March 14, 2003, Brenner advised plaintiff that he still had concerns regarding her writing ability. (Id. ¶ 12.) Brenner indicated that, despite his and Buckely's best efforts to assist her, plaintiff's writing skills continued to fall short of what is required of a high school guidance counselor. (Id.) Brenner explained that because high school guidance counselors play an integral role in helping students with the college admissions process, they must possess a skill set which includes a "facility with writing." (Id.) On March 31, 2003, seventeen days after Brenner's March 14, 2003 memorandum, plaintiff received a letter from Interim Superintendent of Schools, Vincent Ziccolella, advising her that pursuant to Section 3031 of the N.Y. EDUC. LAW ("Section 3031") at the April 22, 2003 board meeting he would recommend that plaintiff not be granted tenure as a school counselor. (Id. ¶ 13.) Plaintiff contends that because Ziccolella's letter was delivered to her less than thirty days before the April 22, 2003 board meeting, it was in clear violation of Section 3031 which required defendant to notify plaintiff at least thirty days prior to a board meeting at which the Superintendent intended to recommend that plaintiff's employment be terminated. (Id. ¶ 14.) Plaintiff alleges that the purpose of the thirty-day period was to allow her to request in writing the reasons for her termination prior to the scheduled board meeting. (Id.) Shortly thereafter, plaintiff contacted representatives of the Yorktown Congress of Teachers and the New York State United Teachers regarding a potential grievance based upon defendant's alleged violation of Section 3031. (Id. ¶ 16.) As a result, negotiations took place between plaintiff, the Yorktown Congress of Teachers, Ziccolella and Brenner, and an agreement was reached on May 20, 2003 (the "Agreement"). (Id. ¶ 17.) The Agreement, which was entitled "Memorandum of Agreement Between the Yorktown Central School District and Deborah Hanig," provided, inter alia, that: (1) plaintiff would continue her employment with the School District for the remainder of the 2002-03 school year; and (2) at the May 20, 2003 board meeting defendant would accept plaintiff's resignation, rather than terminate her employment pursuant to Sections 3031 and 3019-a of the N.Y. EDUC. LAW.*fn4 (Id.) The Agreement further provided that defendant would provide a "neutral reference" for plaintiff to any prospective employers who contacted defendant for a reference. (Id.)

  At the May 20, 2003 board meeting, the Board of Education accepted plaintiff's resignation and her employment with the School District terminated at the conclusion of the 2002-03 school year. (Id. ¶¶ 18, 19.) Thereafter, plaintiff began to seek other employment as a school guidance counselor. (Id. ¶ 19.) In accordance with the Agreement, Brenner provided plaintiff with a letter of recommendation dated June 9, 2003. (Id. ¶ 20.) The tone of the June 9, 2003 letter was positive and complimentary. (Id.)

  On October 20, 2003, plaintiff filed a charge of discrimination against defendant with the EEOC, alleging that "on or about May 20, 2003," defendant discriminated against her on the basis of her disability. (Id. ¶¶ 21, 22.) On January 29, 2004, plaintiff received a Dismissal and Notice of Right-to-Sue letter from the EEOC, advising plaintiff that her file was being closed after the EEOC found that the allegations "did not involve a disability as defined by the Americans with Disability Act." (Id. ¶ 23 (quotations omitted).)*fn5

  Plaintiff was unable to obtain employment as a high school guidance counselor until January 2004, when she was hired by New Rochelle High School as an Interim Maternity Leave Counselor. (Id. ¶ 24.) According to plaintiff, New Rochelle High School was unable to hire her as a permanent employee, but provided her with a very favorable recommendation upon the expiration of her interim position. (Id.) The Amended Complaint does not indicate exactly how long plaintiff's interim position at New Rochelle High School lasted.

  Sometime in the Spring of 2004,*fn6 plaintiff was hired by the Greenburgh 7 Central School District (the "Greenburgh CSD") as a high school guidance counselor for the 2004-05 school year. (Id.) However, after she entered into an agreement with the Greenburgh CSD, but before her employment began, plaintiff received a telephone call from Superintendent Josephine Moffett, advising plaintiff that the Greenburgh CSD had received "unfavorable information" about her from defendant and, as a result, had decided to rescind its offer of employment. (Id. ¶ 26.) According to plaintiff, she has been otherwise unable to obtain employment as a guidance counselor in Westchester County. (Id. ¶ 25.) Plaintiff alleges that defendant provided "unfavorable information" about her to the Greenburgh CSD in direct violation of the Agreement. (Id. ¶ 27.) Plaintiff also alleges that providing such "unfavorable information" caused the Greenburgh CSD to rescind its offer of employment. (Id.) Additionally, plaintiff notes that, although she was able to obtain temporary employment at New Rochelle High School in January 2004, that position was obtained before the EEOC issued its Dismissal and Notice of Right-to-Sue letter to plaintiff. (Id. ¶ 29.) Accordingly, plaintiff alleges that:
As a proximate result of the defendant's intentional, willful and/or reckless conduct, plaintiff has been punished for the exercise of her First Amendment Rights; repeatedly been denied other employment opportunities by reason of her expression of opinion regarding matters of public concern, including, inter alia, the defendant's repeated violation of New York Education Law Section 3031; plaintiff has been humiliated, degraded and publically [sic] embarrassed; deliberately and punitively denied the ability to obtain future employment; caused serious emotional upset and anxiety.

  Defendant now moves for dismissal of the Amended Complaint pursuant to FED. R. CIV. P. 12(b)(1) for lack of subject matter jurisdiction, and pursuant to FED. R. CIV. P. 12(b)(6) for failure to state a claim upon which relief can be granted. (Def. Mem. Supp. Mot. Dismiss at 2.) Defendant contends that this Court lacks subject matter jurisdiction over this action because defendant is entitled to immunity under the Eleventh Amendment to the United States Constitution. (Id.) Defendant further contends that, even if the Court were to decide that Eleventh Amendment immunity does not apply to the School District, plaintiff has failed to state a federal claim and therefore the Court should decline to retain jurisdiction over plaintiff's remaining state law claims. (Id.) First, we will consider defendant's Rule 12(b)(1) motion, and then, if necessary, defendant's Rule 12(b)(6) motion.*fn7


  I. Motion to Dismiss Pursuant to Rule 12(b)(1)

  A. Standard of Review

  When considering a motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), a court must "accept as true all material factual allegations in the complaint." Shipping Fin. Serv. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998) (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984)). However, "jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Drakos, 140 F.3d at 129 (citing Norton v. Larney, 266 U.S. 511, 515 (1925)). When determining whether subject matter jurisdiction exists, a court may properly refer to evidence beyond the pleadings to resolve disputed jurisdictional facts. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "Thus, the standard used to evaluate a Rule 12(b)(1) claim is akin to that for summary judgment under FED. R. CIV. P. 56(e)." Serrano v. 900 5th Avenue Corp., 4 F. Supp. 2d 315, 316 (S.D.N.Y. 1998). Therefore, plaintiff bears the burden of establishing the court's jurisdiction by a preponderance of the evidence. See Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996). B. Eleventh Amendment Immunity

  The Eleventh Amendment "affirms the fundamental principle that sovereign immunity limits the grant of judicial authority contained in Article III of the Constitution." Fay v. South Colonie Cent. Sch. Dist., 802 F.2d 21, 27 (2d Cir. 1986), overruled on other grounds by Taylor v. Vt. Dep't of Educ., 313 F.3d 768 (2d Cir. 2002). Eleventh Amendment immunity applies "`when the state is the real substantial party in interest.'" Id. (quoting Ford Motor Co. v. Dep't of Treasury, 323 U.S. 459, 464 (1945)). Generally, the state is the real party in interest when payment of a judgment would come from the state treasury. See Fay, 802 F.2d at 27 (citations omitted).

  Defendant contends that this Court lacks subject matter jurisdiction over plaintiff's federal claims because, as a New York school district, defendant is an "arm of the State" and therefore entitled to Eleventh Amendment Immunity. (Def. Mem. Supp. Mot. Dismiss at 4.) In support of this contention, defendant relies on Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000) wherein the Supreme Court held that the ADEA did not validly abrogate the states' Eleventh Amendment immunity from suit by private individuals. (Def. Mem. Supp. Mot. Dismiss at 4.) In further support of its argument, defendant claims that New York school districts satisfy the six-factor test set forth in McGinty v. New York, 251 F.3d 84 (2d Cir. 2001), which is ...

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