The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
On March 23, 2006, Plaintiff Susan F. McLaughlin commenced this action for declaratory and injunctive relief and damages pursuant to 42 U.S.C. § 1983, Article I, § 8 of the New York State Constitution, and New York Labor Law § 741 asserting retaliation in violation of her First Amendment rights and her rights under the New York State Constitution and the Labor Law. See Compl., dkt. # 1. Plaintiff filed an Amended Complaint on May 29, 2006. See Am. Compl., dkt. # 14. Thereafter, certain defendants were dismissed from the action by stipulation. See dkt. # 37 (Stipulation and Order dismissing all claims against Doris Chenier); dkt. # 45 (Stipulation and Order dismissing all claims against the New York State Public Employees Federation AFL-CIO and Edward J. Snow, Jr.). Defendants Peter F. Pezzolla, Joseph J. Colarusso, Antonia J. Ferguson, Ann T. Nehrbauer, Victor M. Turner, Kathleen Broderick, Laura McGrath, Rita Martin, the NYS Office of Mental Retardation and Developmental Disabilities ("OMRDD") and the Willowbrook Consumer Advisory Board ("CAB") have filed a motion asking the Court to:
(a) dismiss Plaintiff's federal claims pursuant to Fed. R. Civ. P. 12(b)(6); and (b) decline to exercise supplemental jurisdiction over Plaintiff's state law claims. Plaintiff opposes the motion and cross-moves for an order granting her leave to file and serve a Second Amended Complaint. Defendants have opposed the cross-motion and contend, even if the complaint is amended a second time, Plaintiff fails to state a federal claim upon which relief can be granted.
a. Motion to Dismiss Under Rule 12(b)(6)
A motion under Fed. R. Civ. P. 12(b)(6) tests the legal sufficiency of the claims pleaded in the complaint. As the Supreme Court has held, "a complaint must only include 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)(quoting Fed. R. Civ. P. 8(a)). "Such a statement must simply 'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Id. (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). "This simplified notice pleading relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Id. Thus, a complaint is sufficient if it gives the defendant fair notice of the plaintiff's claims, the grounds upon which they rest, and states claims upon which relief could be granted. Id. at 514.
On a Rule 12(b)(6) motion, the Court accepts as true all factual allegations in the complaint. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993). "Further, the court should construe the complaint liberally and draw inferences from the plaintiff's allegations in the light most favorable to the plaintiff." Tomayo v. City of N.Y., 2004 WL 137198, at * 5 (S.D.N.Y. Jan. 27, 2004)(citing Desiderio v. National Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir. 1999)). The complaint must allege sufficient facts that would make the pleaded theories plausible. See Twombly v. Bell Atlantic Corp., 425 F.3d 99, 111 (2d Cir. 2005). Dismissal is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief," Phillip v. Univ. of Rochester, 316 F.3d 291, 293 (2d Cir. 2003)(citation omitted), or where the complaint fails as a matter of law. Phelps v. Kapnolas, 308 F.3d 180, 187 (2d Cir. 2002).
b. Amendment of Complaint Under Rule 15(a)
Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend "shall be freely given when justice so requires." Leave is not, however, automatic, and may be denied for good cause "such as . . . bad faith or dilatory motive on the part of the movant . . . [or] futility of amendment." Foman v. Davis, 371 U.S. 178, 182 (1962). "An amendment is considered futile if the amended pleading fails to state a claim or would be subject to a successful motion to dismiss on some other basis." Lamb v. Henderson, 1999 WL 516271, at *2 (S.D.N.Y. Aug. 9, 1999)(citing S.S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 42 (2d Cir. 1979)). A court, therefore, is justified in denying an amendment that could not withstand a motion to dismiss. Id. (internal citations omitted); see also Ruffolo v. Openheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993)(where granting leave to amend is unlikely to be productive it is not an abuse of discretion to deny leave to amend).
The following facts are those set forth in the Amended Complaint ("Am. Compl")*fn1 or constitute reasonable inferences that may be drawn from Plaintiff's allegations. Plaintiff Susan F. McLaughlin was employed by the State of New York for 35 years. Am. Compl. ¶ 17. In March 1989, Plaintiff was appointed to a position as a Program Associate with the Willowbrook Consumer Advisory Board ("CAB"). Am. Compl. ¶ 18. The CAB was established pursuant to provisions set forth by the United States District Court for the Eastern District of New York in New York State Association for Retarded Children, et al., v. Hugh L. Carey, et al., 393 F. Supp. 715 (E.D.N.Y. 1975). Am. Compl. ¶ 20. In that action, the New York Civil Liberties Union ("NYCLU") represented the developmentally disabled individuals who resided at the Willowbrook State School prior to 1972 and who had been subjected to abuse and neglect while there. The New York State Office of Mental Retardation and Developmental Disabilities ("OMRDD") was one of the defendants in that action.
By a Permanent Injunction entered March 11, 1993, the United States District Court for the Eastern District of New York noted that "in order to prevent the recurrence of the tragic conditions which led to the filing of this litigation in 1972 and the entry of the Consent Judgment in 1975, both plaintiffs and defendants agree that the members of the plaintiff class must continue to receive high quality services in appropriate community settings for the rest of their lives . . . ." Am. Compl. ¶ 22. The CAB was established by the Federal court essentially to be an independent "watchdog" over OMRDD's provision of services to members of the Willowbrook Class. See Am. Compl ¶¶ 20 - 23. In her position as a Program Associate for CAB, Plaintiff was responsible for representing between 87 and 125 members of the Willowbrook Class. Am. Compl. ¶ 26. These developmentally disabled individuals, referred to as consumers, resided in facilities in upstate New York and did not have family members or other individuals to make decisions on their behalf. Am. Compl. ¶¶ 20, 26. Plaintiff's job duties included attending treatment team meetings, conducting site visits, providing or withholding Informed Consent as required by regulations, interacting with service providers on behalf of the consumers assigned to her caseload, and reporting individual or systemic issues to the CAB hierarchy. Am. Compl. at ¶ 27.
Plaintiff was a vigorous advocate for the consumers assigned to her caseload. Am. Compl. ¶ 29. During the period 1989-2005, Plaintiff reported numerous instances of abuse and neglect and of the failure to provide proper services to the consumers assigned to her caseload. Am. Compl. ¶¶ 29 -50. Despite receiving these detailed verbal and written reports, Defendant CAB failed to take any action to protect the consumers and/or to otherwise properly respond to Plaintiff's reports. Am. Compl. ¶¶ 29-50, 60-61, 85-87, 102-104. Because the CAB had failed to act on or otherwise address any of Plaintiff's reports, in January 2003 Plaintiff wrote three letters to Beth Haroules, Esq., a staff attorney at the NYCLU, detailing the failures to provide prompt diagnosis and adequate treatment to two individuals assigned to Plaintiff's caseload who were suffering from cancer. Am. Compl. ¶¶ 53-55. Ms. Haroules did not respond to Plaintiff's letters. Am. Compl. ¶¶ 53-55. Ms. Haroules was not affiliated with CAB and was not in any way in Plaintiff's supervisory chain of command. Am. Compl. ¶¶ 53-55. Plaintiff continued to make reports regarding the mistreatment of the consumers assigned to her caseload. The CAB again failed to respond to any of Plaintiff's reports and failed to take any other action in response to them. Am. Compl. ¶¶ 60-61.
By letter dated February 20, 2004, plaintiff wrote to defendant Nehrbauer and Commissioner Maul to report specific cases of neglect and abuse of consumers assigned to her caseload "resulting in illness, injury, and/or death of people with developmental disabilities in the care of OMRDD." In the letter, plaintiff stated that "situations about which I have repeatedly expressed concern involve abusive or neglectful acts and systemic cover-up. There are indications that some of the cases also involve Medicaid fraud."
Am. Compl. ¶ 64.*fn2 Defendant Ann Nehrbauer was the Chair of the CAB, and Thomas Maul was the OMRDD Commissioner.*fn3 Defendant Nehrbauer sent a letter of acknowledgment to Plaintiff, but otherwise failed to take any action on it. Am. Compl. at ¶ 66.*fn4 OMRDD Counsel Paul Keitzman replied to Plaintiff on behalf of OMRDD Commissioner Maul by means of a letter. Am. Compl. ¶ 67.*fn5 In this letter, Keitzman told Plaintiff to share her concerns with Daniel Reardon, the Director of Internal Affairs for OMRDD. Am. Compl. at ¶ 67. Plaintiff wrote to Director Reardon by letter dated March 12, 2004 and requested an investigation into the mistreatment of a number of consumers assigned to her caseload. Am. Compl. at ¶ 70.
Plaintiff subsequently met with Reardon on June 4, 2004 and provided him with more than 700 pages of documents concerning Consumer B's treatment. At the meeting, plaintiff also discussed five other cases with Reardon and attempted to report an additional fifteen cases. Reardon assured plaintiff that he would review the files provided by plaintiff and that he ...