The opinion of the court was delivered by: Gershon, United States District Judge
Plaintiff Patricia Hollomon filed an action against defendants City of New York ("City"), New York City Department of Correction ("DOC"), Commissioner Martin Horn, (collectively "City Defendants"), Karlief M. Jones-Boyd, a DOC captain, Lawrence Berton, a former DOC captain, and John Does 1-5. Plaintiff alleges (1) failure to grant reasonable accommodation and (2) discrimination based on pregnancy status and/or temporary disability resulting from her pregnancy in violation of the Pregnancy Discrimination Act of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et. seq. ("Title VII"); 42 U.S.C. § 1983; the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290 et. seq.; and the New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code §§ 8-101 et. seq.. Plaintiff also alleges retaliation in response to filing a complaint of pregnancy discrimination with the New York State Division of Human Rights and the Equal Employment Opportunity Commission ("EEOC"), in violation of Title VII, the NYSHRL and the NYCHRL.
The City, DOC, and Commissioner Horn ("City Defendants") now move to dismiss all claims with prejudice pursuant to Federal Rules of Civil Procedure 12(b)(5) and 12(b)(6), arguing that (1) plaintiff failed to timely serve the Complaint according to the requirements of Federal Rule of Civil Procedure 4(m); (2) Commissioner Horn cannot be held individually liable under Title VII; and (3) plaintiff's retaliation claims fail as a matter of law because plaintiff cannot establish that she has been subject to an adverse employment action.*fn1
As set forth below, at the time the Complaint was filed, the three year statute of limitations for Section 1983 claims and for NYSHRL and NYCHRL discrimination claims had expired, and these claims will therefore be dismissed. Additionally, the Title VII claims against the individual defendant will be dismissed. As to the remaining Title VII claims, a discretionary extension of the time to serve process will be granted. Finally, the motion to dismiss will be denied as to the Title VII, NYSHRL and NYCHRL retaliation claims against defendants City and DOC and as to the NYSHRL and NYCHRL retaliation claims against individual defendant Horn.
Plaintiff filed her Complaint on July 14, 2004. It is undisputed that service did not occur until December 7, 2004, some twenty-five days after expiration of the 120 day period for service of process.
In a letter to the court dated April 12, 2005, plaintiff's counsel acknowledged that the twenty-five day delayed service was due to an "oversight." City Defendants moved to dismiss on August 17, 2005. In a letter to the court dated August 30, 2005, plaintiff's counsel reported that he had health problems and requested an additional thirty days to respond to City Defendants' motion to dismiss or leave to withdraw as counsel. When repeated efforts to contact plaintiff's counsel failed, the court, by Order dated December 28, 2005, allowed plaintiff's counsel to withdraw from the case and directed plaintiff to secure new counsel, as she wished to do, or to file a response pro se by February 6, 2006. On February 6, 2006, plaintiff requested an extension to retain counsel. The request was granted by Order dated February 9, 2006 and plaintiff was given until March 27, 2006 to file her response to the motion to dismiss. Plaintiff did not retain new counsel. She has submitted to the court a signed, but otherwise blank, form in opposition to the motion to dismiss.
The Complaint contains the following allegations:
Plaintiff, an African-American female, is a Corrections Officer for the DOC's Rikers Island Facility ("Rikers"). Complaint ¶¶ 5, 6, 20. She was hired in November 1996 and her duties included maintaining order at the inmate facility, ensuring that inmates did not breach the rules, desk work and other tasks. Complaint ¶ 20. In March 2001, plaintiff informed the DOC's Health Management Division that she was pregnant and, in late May 2001, she was categorized as MMR III, the "most serious category of restrictive duty." Complaint ¶¶ 22, 23. The Health Management Division advised that she should not lift, pull, respond to alarms, stand for a prolonged time or have inmate contact, and she was then assigned to the General Office at a Rikers building facility. Complaint ¶¶ 23, 24.
On or about June 28, 2001, defendants City, DOC, Boyd and Berton engaged in discriminatory acts and failed to reasonably accommodate the temporary disabilities caused by her pregnancy. Complaint ¶¶ 18, 26, 39. Specifically, plaintiff alleges that Boyd and Berton "intentionally and maliciously" assigned plaintiff to the Sallyport Security Exterior post when there were other available corrections officers who were not on MMR III status. Complaint ¶ 26(a). The job entailed "[ensuring] that vehicles entering part of Rikers do not carry in contraband, inmates do not escape from vehicles leaving the compound, vehicles are thoroughly searched by visual inspection of the undercarriage of the vehicles" and "engaging in pat frisk searches of vehicle occupants and open[ing] and clos[ing] trunks, among other things[.]" Complaint ¶ 26(a). Boyd and Berton were fully aware that plaintiff was three and a half months pregnant and, contrary to her restrictions, the security post duties, including the walk to the post, would require her to stand and possibly encounter inmates. Complaint ¶ 26(b), (e). Plaintiff further alleges that she was visibly wearing maternity clothes and placed at the security post without uniform, that Boyd and Berton dismissed her repeated protests that she not be assigned to the post, that Berton told her he "did not like 'her attitude,'" and that Boyd and Berton were aware that the security post lacked water, air conditioning and a bathroom and that she would be there for an extended period of time. Complaint ¶ 26(c), (d), (f).
"[A]s a result of having to be outside that day without water or use of any bathroom for approximately 3.5 hours or more" in 92 degree heat, plaintiff felt ill, requested medical attention, and went to the hospital, where she was diagnosed as suffering from dehydration. Complaint ¶ 26(b), (g), (h). Plaintiff also claims that she has suffered from "severe emotional trauma which negatively altered the terms and conditions of her employment." Complaint ¶ 26(i).
On or about January 10, 2002, plaintiff filed a charge of discrimination regarding the June 28, 2001 incident with the New York State Division of Human Rights and the EEOC. Complaint ¶ 28. She received a right to sue letter from the EEOC on April 15, 2004. Complaint ¶ 2. Plaintiff asserts that, before this date, the only discipline she had received was for one, and possibly a few other, minor infractions. Complaint ¶ 29. Plaintiff alleges that defendants Horn and John Does 1-5 then engaged in retaliatory acts in response to the filing of the charge of discrimination. Complaint ¶ 31. Specifically, she maintains that she was denied requested "Steady Tours," although other employees who had returned from maternity leave but had not engaged in protected activity were granted such tours as a result of their conditions. Complaint ¶ 31(a)(i). Plaintiff also asserts that she was assigned to areas with potential or actual inmate contact even when she was still classified as MMR III, and that she was "micro-managed" and singled out for criticism. Complaint ¶ 31(a)(ii), (iii). As evidence of further retaliation, plaintiff alleges that when she returned to full duty on or about October 4, 2002, she was disproportionately disciplined by John Does 1-5. Complaint ¶ 31(b), (c). She was assessed with twenty-three disciplinary charges, suspended for thirty days without pay and faced termination pending an administrative hearing. Complaint ¶ 31(c). The matter was then settled and, in a plea agreement dated July 23, 2003, plaintiff agreed to accept a thirty day suspension with credit for time served. Complaint ¶ 31(d). Plaintiff alleges that "as a pretext for unlawful retaliation," Horn added a one year ...