The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiffs Kevin Chesney ("Plaintiff") and Lorraine Chesney brought the present suit against Valley Stream Union Free School District No. 24; Valley Stream Union Free School District No. 24 Board of Education; Joseph Conrad; Carole Meaney; Henrietta Carbonaro; Paul DePace; Anthony Iadevaio; Frank Nuara; Lawrence Trogel; Edward M. Fale; Lisa K. Conte; Charles Broceaur; Stephen Haramis (hereinafter, collectively, "District Defendants"); Local 74 Service Employee International Union ("Local 74"); "John Does and Janes Does A through D"; and the Nassau County Civil Service Commission ("N.C.C.S.C.") in the Supreme Court of the State of New York County of Nassau alleging violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq.; the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), 29 U.S.C. § 1166; the Americans with Disabilities Act ("ADA"), 42 U.S.C.A. § 12131 et seq; Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 1983 and 1985; the Equal Protection clause of the Fourteenth Amendment; the "Eighth Amendment right to confront his accusers"; and six state law claims. District Defendants now move to dismiss the Complaint pursuant to Federal Rules of Civil Procedure ("Rule") 12(b) (4), (5), and (6). Defendant Local 74 moves separately to dismiss the Complaint pursuant to Rule 12(c). Plaintiff opposes both of the motions. For the reasons set forth herein, the Court GRANTS in part and DENIES in part the District Defendants' motion and GRANTS in full Defendant Local 74's motion.*fn1
The following summary of facts is drawn from the Amended Complaint. Plaintiff resides in Valley Stream, New York, with his wife, Lorraine Chesney. Valley Stream Union Free School District ("District") is a municipal corporation for public education that receives state and federal funding and has its administrative offices in Valley Stream, New York. The District's Board of Education ("Board") was comprised of Joseph Conrad, President; Carole Meaney, Vice President; Henrietta Carbonaro, Paul DePace, Anthony Iadevaio, Frank Nuara, and Lawrence Trogel at the times relevant to the present dispute. Joan DeBell was the Disrict Clerk; Andrea DiFusco was the District Treasurer; and Edward M. Fale, Ph.D., was the Superintendent of Schools for the District; Lisa K. Conte was the Principal of District No. 24. Plaintiff also noted, somewhat curiously, that "the motto of the District was and is 'WE TAKE PRIDE IN OUR SCHOOLS.'" (Am. Compl. ¶ 6.)
Defendant Local 74, with its principle offices in Long Island City, New York, had a collective bargaining agreement with the District. Chesney was a member of Local 74. The N.C.C.S.C., located in Hempstead, New York, was "united in interest with the New York State Civil Service Commission." (Id. ¶ 10.) Such is Plaintiff's description of the various defendants in this dispute.
Plaintiff worked for the District from "October 3, 2004, to May 17, 2004,"*fn2 as an "able-bodied man." (Id. ¶ 13.) On March 18, 2004, the Board approved Plaintiff's permanent appointment as a "cleaner" at the Robert W. Carbonaro School, effective April 5, 2004. This approval conferred upon Plaintiff the designation of a "permanent" civil service employee. The appointment was the result of the successful completion of Plaintiff's probationary appointment.
On May 17, 2004, Chesney was "breaking down" the gym, which had been the location of a school event the night before. While he was performing this task, he felt a "pop" in his back, and could "barely get out of bed the following day." (Id. ¶¶ 22, 23.) "Nevertheless, plaintiff Chesney traveled to the District and duly filed an accident report in accordance with District policy." (Id. ¶ 24.) Plaintiff missed several days of work due to the injury, and "learned he had a herniated disc, which was causally related to the accident of May 17, 2004." (Id. ¶ 26.) Plaintiff submitted a Worker's Compensation claim on May 25, 2004, and he did not return to his job "for a period of time." (Id. ¶ 29.) At this point, the Amended Complaint is somewhat vague and difficult to follow. It appears that Plaintiff did return to work shortly thereafter, but "[o]n or about June 9, 2004, he left work early and did not return at that time due to his disability." (Id. ¶ 31.)
On June 11, 2004, Defendant Haramis, "plaintiff's co-worker and shop steward contacted Superintendent Fale to ascertain whether or not Plaintiff was driving a cab on June 11, 2004." (Id. ¶49.) The District and Superintendent Fale instructed Defendant Broceaur, Supervisor of Maintenance, to "initiate an 'investigation' of Chesney's second job as a taxi driver." (Id. ¶ 50.)
Upon confirming that Plaintiff was indeed employed and working as a taxi driver, while he was receiving Worker's Compensation benefits, Superintendent Fale held a meeting with a union representative, a co-worker, Principal Conte, and Plaintiff. Superintendent Fale said to Plaintiff:
You were seen driving a cab at about 6:30 p.m. on June 11; you cannot be employed or receive any income while receiving workers' compensation benefits; that is insurance fraud, working your second job and being out sick while I'm paying for overtime is theft of services. We are terminating you, but if you resign right now, you will leave with a good recommendation, clean record, and I will allow you to pursue your compensation claim. (Id. ¶ 58.) Plaintiff was terminated shortly thereafter.
Without filing an EEOC complaint, an action with any corresponding state agency, or a notice of claim, Plaintiff brought the present lawsuit in New York state court on fourteen causes of action, and seeking $26,000,000.00 for "pain and suffering, inability to obtain critical surgery, and damages as yet undetermined." (Id. ¶ 64.) The suit was first filed in the Supreme Court of the State of New York County of Nassau on June 12, 2005. District Defendants subsequently removed the suit to this court on November 1, 2005, on the basis of federal question jurisdiction. Defendant Local 74 submitted an answer on November 4, 2005.
Plaintiff filed that Amended Complaint with this Court on December 8, 2005. District Defendants moved to dismiss the Amended Complaint. Defendant Local 74 moved separately to dismiss the claims against it, but in so doing announced its rejection of the Amended Complaint as untimely, as it was filed without leave after Defendant Local 74 had filed its answer. (See Def. Local 74's Reply Mem. at 5-6.) Nonetheless, all Defendants' moving papers address the claims against it in the Amended Complaint, and the Court addresses the following opinion to the Amended Complaint. Plaintiff opposed both motions.*fn3
Defendants' motions are brought pursuant to Rule 12(b) (4), (5), and (6) and Rule 12(c). When considering a motion to dismiss for insufficiency of process under Federal Rule of Civil Procedure 12(b)(4) and insufficiency of service of process under Rule 12(b)(5), "a Court must look to matters outside the complaint to determine whether it has jurisdiction." Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F. Supp. 2d 382, 387 (S.D.N.Y. 2002). "When a defendant raises a Rule 12(b)(5) challenge to the sufficiency of service of process, the plaintiff bears the burden of proving its adequacy." Preston v. New York, 223 F. Supp. 2d 452, 466 (S.D.N.Y. 2002); see also Fagan v. Deutsche Bundesbank, 438 F. Supp. 2d 376 (S.D.N.Y. 2006).
In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court must limit itself to the facts stated in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint. Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999). The court must accept the factual allegations contained in the complaint as true, and view the pleadings in the light most favorable to the non-moving party, drawing all reasonable inferences in his favor. Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994), cert. denied, 513 U.S. 816 (1994). Dismissal under Rule 12(b)(6) is appropriate only if it appears beyond doubt that a plaintiff can prove no set of facts in support of his claim entitling him to relief. Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 79 (2d Cir. 2003).
To satisfy the notice pleading requirements, a complaint need include only a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Such a statement must "'give the defendant[s] fair notice of what the plaintiff's claim is and the grounds upon which it rests,'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Conley v. Gibson, 355 U.S. at 47), but it need not plead evidence, see Swierkiewicz, 534 U.S. at 510-11. The same standards apply to a motion for judgment on the pleadings under Rule 12(c). See, e.g., Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004).
District Defendants move to dismiss the Amended Complaint in its entirety. It appears that each of the fourteen claims are directed against them. It is much less clear which claims are asserted against Defendant Local 74. Plaintiff even makes the bizarre assertion that "Defendant Union [Local 74] has no legal business appearing in this action against its own member and former client." (Pl.'s Opp'n Mem. to Def. Local 74 at 2.) Of course Plaintiff's argument falls wide of the mark when it was Plaintiff who named Defendant Local 74 as a defendant in the first place. Nevertheless, perusing the Amended Complaint, the causes of action that refer, either specifically or generally, to Defendant Local 74 are the Sixth (Am Compl. ¶ 71), Eighth (id.. ¶ 76), Tenth (id. ¶ 81); Twelfth (id. ¶ 87), Thirteenth (id. ¶ 90); and Fourteenth Cause of Action (id. ¶ 95). The Court's reasoning regarding each of the claims applies to both parties, except where noted.
Plaintiff brought claims pursuant to the ADA and Title VII. (See Am. Compl. ¶¶ 48-52 (Count Five: ADA), 78-79 (Count Nine: Title VII).) District Defendants move to dismiss these claims on the grounds that Plaintiff failed to obtain a "right-to-sue" letter as required by law. Without citations to any case law, Plaintiff insists that "Defendant is incorrect in its contention that a Title VII or ADA claimant may bring suit in federal court only if he filed a timely complaint with the EEOC and obtained a right to sue letter." (Pl.'s Opp'n Mem. at 9.)
The Second Circuit has consistently held that "exhaustion of administrative remedies through the EEOC stands as an essential element of Title VII's statutory scheme, and one with which defendants are entitled to insist that plaintiffs comply." Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000) (citation and internal quotation marks omitted); see also Bey v. Welsbach Elec. Corp., 38 Fed. Appx. 690, 692 (2d Cir. 2002). "The enforcement provisions of Title VII . . . are applicable to actions brought under the ADA against employers." Dollinger v. State Ins. Fund, 44 F. Supp. 2d 467, 476 (N.D.N.Y. 1999); see also Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) ("Exhaustion of ...