The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Debra A. Burns ("plaintiff" or "Burns") brings this action against defendants Oren F. Cook ("Cook"), the Adirondack Central School District Board of Education ("Board of Education"), and the Adirondack Central School District ("District") under various federal, state, and common law theories of recovery. Specifically, plaintiff claims that defendants (1) retaliated against her for engaging in constitutionally protected speech in violation of 42 U.S.C. § 1983, the First Amendment to the United States Constitution, and article 1, section 8, of the New York State Constitution; (2) violated her substantive due process rights in contravention of the Fourteenth Amendment; (3) denied her equal protection of the laws in violation of both the Fourteenth Amendment and article 1, section 11, of the New York State Constitution; (4) failed to provide reasonable accommodations to her physical limitations in violation of section 102 of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112; (5) took adverse personnel actions against her for disclosing what she believed to be improper governmental conduct to governmental bodies, in violation of section 75-b of the New York Civil Service Law; (6) defamed her; (7) damaged her property interests and professional reputation; and (8) intentionally caused her to suffer emotional distress.*fn1
Defendants move to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failing to state a claim upon which relief can be granted. Plaintiff opposes. Oral arguments were heard on March 10, 2006, in Utica, New York. Decision was reserved.
Plaintiff has been employed by the District as a secretary-typist since 1991, a position which she holds to this day. She attained status as a permanent civil service employee under New York law on April 13, 1993, and is a member of the non-teaching personnel union.
In April 1995, plaintiff suffered a myocardial infarction and has since suffered from a heart condition and related illness (the details of which are not specified in the complaint). Thereafter, she notified the District of her heart condition and need for reasonable accommodations. In June 1995, plaintiff's full-time secretary-typist position was reduced to a half-time position because of her medical condition.
In May 2001, plaintiff was notified by the District Superintendent that her half-time secretary-typist position would be eliminated. On July 1, 2001, plaintiff's position was in fact eliminated. Prior to and following the elimination of her position, plaintiff informed the District that she was entitled to "bump" into an existing full-time typist position pursuant to New York State Civil Service Law and the terms of her collective bargaining agreement. (Compl. ¶ 22.) The District refused to reappoint her to an existing full-time typist position. As a result, plaintiff contacted the Oneida County division of the New York State Department of Civil Service ("Civil Service") and notified that body of the District's actions, which she believed constituted a violation of her seniority rights. Civil Service then notified the District that plaintiff did in fact have a right to an existing full-time typist position. In August 2001, the District offered plaintiff an existing full-time position at the District's middle school, but informed her that because of her medical condition she would work only four hours per day instead of a normal seven-hour day. Plaintiff accepted this position.
Plaintiff did not begin her new employment at the middle school until October 1, 2001. Because she was not employed by the District from July 1, 2001, until that date, plaintiff lost vacation time, personal leave time, holiday time, and other fringe benefits. As a result, plaintiff contacted the Civil Service and complained about the District's delay in reemploying her.
In February 2002, plaintiff provided to the District a note from her physician stating that he had never advised the District to remove plaintiff from the workplace, that she had been performing her duties without a problem, and that her condition required only that she take periodic rest through the regular vacation process.
In May 2002, plaintiff informed the District Superintendent and Board of Education that she believed they were violating her statutory and contractual rights by withholding the fringe benefits, and requested that such benefits be restored retroactive to July 1, 2001. Shortly thereafter, plaintiff was advised, by whom it is unclear, that the District was going to "get rid of her" because of her communications with the Civil Service. (Compl. ¶ 29.)
On October 6, 2002, Cook became the District Superintendent. On November 13, 2002, he informed plaintiff that he was going to re-title a full-time labor aide position at the middle school as a four-hour typist position and transfer her there. Plaintiff told Cook, in the presence of "others," that she would not consent to such a transfer because she believed it was in violation of her statutory and contractual rights. (Compl. ¶ 33.) In December 2002, Cook denied plaintiff the use of personal leave time when her mother passed away, requiring her to use vacation time instead. In April 2003, Cook denied plaintiff the use of both personal leave and vacation time to rest in accordance with her physician's orders, requiring her to take unpaid leave instead. Shortly thereafter, plaintiff suffered another heart attack which required a catheterization and an extended period of time off for recuperation.
In July 2003, plaintiff requested that the District make reasonable accommodations so that she could return to work. She then became aware, how it is unclear, that several District employees had been given access to her medical records and thereby gained knowledge of her medical condition. She was also informed, by whom it is unclear, that the District Business Manager considered her to be a liability to the District and wished to keep her from returning to work. Nonetheless, plaintiff returned to her four-hour position at the middle school, and at the request of the District, actually worked seven-hour days for several months during the 2003-04 school year.
During the 2003-04 school year, plaintiff publicly supported her union president's candidacy for a position on the Board of Education. Plaintiff voiced her support for the candidate "in the general community, at meetings and at social occasions." (Compl. ¶ 39.) Specifically, plaintiff handed out fliers to other District employees and asked them to support the candidate in the May 2004 election. Cook and certain members of the Board of Education supported a candidate running in opposition to plaintiff's union president. Sometime during the spring of 2004, Cook reprimanded plaintiff for publicly endorsing her union president's candidacy.
On April 7, 2004, Cook informed plaintiff by letter that her position would be abolished effective July 1, 2004. In the letter, Cook acknowledged plaintiff's seniority rights and asked her to provide a letter from her physician stating that she was capable of performing the duties required of a District typist. Shortly thereafter, plaintiff provided a letter from her physician clearing her to work six and a half hours per day initially, and later the full seven hours per day. At some point, the letter was disseminated to several District employees and non-employees without plaintiff's consent.
On April 23, 2004, Cook informed plaintiff during a meeting between them that she would continue to work four-hour days at the middle school position. Plaintiff expressed her desire to work full seven-hour days. After the middle school Principal indicated that she wanted plaintiff to work in a full-time capacity, Cook verbally agreed to place plaintiff in a full-time position and stated that he would memorialize his decision in a letter to all those concerned. During this meeting, plaintiff and "others" notified Cook of the unauthorized release of her medical information to District employees and non-employees. (Compl. ¶ 45).
On May 3, 2004, plaintiff sent a letter to Cook memorializing the terms discussed at the April 23 meeting and requested that he send her written verification of such terms. However, on May 14, 2004, plaintiff was called to another meeting with Cook where she was informed that her four-hour position at the middle school was not going to be abolished on July 1, 2004. Thus, she would keep her four-hour position rather than be reassigned to the full-time position. Cook then informed plaintiff that if she became interested in a full-time position in the future, she could submit a request for the same when such positions became available.
On May 18, 2004, a full-time typist position became available at the middle school. Shortly thereafter, plaintiff notified Cook that she wished to "bump" into the newly open full-time position at the middle school. On June 3, 2004, Cook denied plaintiff's request to be reassigned to that position. On June 21, 2004, plaintiff complained to the Civil Service about Cook's denial of her request and filed a grievance pursuant to the terms of the collective bargaining agreement between her union and the District. Cook denied her grievance that same day.
Meanwhile, District employees with less seniority than plaintiff were placed in full-time typist positions effective July 1, 2004. On July 7, 2004, plaintiff appealed Cook's denial of her request to the Board of Education. On August 17, 2004, Cook requested that plaintiff provide another letter from her physician indicating that she was capable of performing the duties required of a full-time typist. On August 23, 2004, plaintiff complied with this request. On September 23, 2004, the Board of Education notified plaintiff that it supported Cook's decision pertaining to the denial of her grievance.
On or about December 15, 2004, plaintiff filed a notice of claim in state court. Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on July 19, 2005, and received a notice giving her the right to sue on August 1, 2005. She filed this action on November 1, 2005.
A. Motion to Dismiss Standard
On a Rule 12(b)(6) motion to dismiss, the allegations in the complaint are accepted as true and all reasonable inferences must be drawn in the plaintiff's favor. Grandon v. Merrill Lynch & Co., 147 F.3d 184, 188 (2d Cir. 1998); Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995). However, factual allegations must be distinguished from "[c]onclusory allegations or legal conclusions masquerading as factual conclusions," as the latter will not be accepted as true. Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d Cir. 2002) (internal quotation marks omitted). 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). In this regard, Federal Rule of Civil Procedure 8(a) provides, in relevant part, "[a] pleading which sets forth a claim for relief . . . shall contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief, and [ ] a demand for judgment for the relief the pleader seeks." Fed. R. Civ. P. 8(a). Thus, the pleading standard is undoubtedly a liberal one. Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998). In more definite terms, a plaintiff's complaint will be dismissed for legal insufficiency 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, 102 (1957).
B. Free Speech Retaliation Claims*fn3
Defendants move to dismiss plaintiff's free speech retaliation claims, both state and federal, on the ground that she has failed to state a claim upon which relief can be granted. In order to make out a prima facie case of First Amendment retaliation under § 1983, a plaintiff must demonstrate the following: (1) her speech was constitutionally protected; (2) she suffered an adverse employment action; and (3) a causal connection exists between the protected speech and the adverse employment action such that the speech was a motivating factor in the employer's decision to take the adverse action. Mandell v. County of Suffolk, 316 F.3d 368, 382 (2d Cir. 2003) (citing Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999); Locurto v. Safir, 264 F.3d 154, 166 (2d Cir. 2001)). If a plaintiff can make out a prima facie case, the employer can nonetheless escape liability by demonstrating that the speech was likely to disrupt governmental activities, the interests in preventing the disruption outweigh the value of the speech, and the adverse action was motivated by the potential disruption as ...