The opinion of the court was delivered by: Hurley, Senior District Judge
On Motion to Dismiss (doc. #18)
Plaintiff Rona Hertzner ("Plaintiff" or "Hertzner") brings a complaint of employment discrimination, retaliation and hostile work environment based on gender, religion, disability, and perceived sexual orientation against Defendants United States Postal Service ("USPS" or "Postal Service"), Postmaster General John E. Potter ("Potter"), Richard Kitson, Postmaster of the Farmingdale, New York post office ("Kitson"), and Jeff Smith, a Senior Labor Relations Specialist with the Postal Service ("Smith"). The Complaint states four causes of action: a Title VII cause of action, an American with Disabilities Act cause of action, a constitutional cause of action for violations of the First, Fifth and Fourteenth Amendments, and a § 1983 cause of action for municipal violations. Defendants USPS and Potter (the "Moving Defendants") move to dismiss Plaintiff's Complaint in its entirety claiming (1) improper service pursuant to Federal Rule of Civil Procedure 12(b)(5),and (2) failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(5). For the reasons stated, infra, Moving Defendants' Motion to Dismiss is GRANTED.
On a motion for dismissal, a court must accept as true all facts alleged in a plaintiff's complaint and must draw all inferences in favor of the plaintiff. See Twombly v. Bell Atlantic Corp., 425 F.3d 99, 106 (2d Cir. 2005) (citing Todd v. Exxon Corp., 275 F.3d 191, 197 (2d Cir. 2001)). Thus, this summary of facts is based on the Plaintiff's Amended Complaint (doc. #2).
In January 1987, Plaintiff Hertzner began working for the Postal Service at its Farmingdale, New York facility. There, Plaintiff alleges she was harassed, humiliated, degraded, and intimidated, by co-workers because of her religion (Judaism), gender (female) and perceived sexual orientation (homosexual). Plaintiff complained of this treatment to her supervisors and the Postal Service's Equal Employment Office to no avail. Her exposure to this treatment caused Plaintiff to develop "Major Depression Recurrent, Post Traumatic Stress Disorder" (Pl.'s Am. Compl. at ¶ 18). Eventually, "[b]ecause of the extreme hostile work environment, Plaintiffs [sic] mental health situation deteriorated, forcing Plaintiff to take an unpaid medical leave of absence in or about April 1999." (Id. at ¶ 20.)
In early June 2001, Plaintiff was notified by letter of Defendant Kitson that she was the successful bidder for a position in the Farmingdale post office. This June 6th letter also advised Hertzner that she was "'required to submit medical documentation showing that [she was] able to return to full duty within six (6) months.'" (Id. at ¶ 21.) While the Amended Complaint indicates Plaintiff responded to Kitson's letter on June 10, 2001, it does not indicate the contents of the response letter. (See id.) Yet, for reasons not made known to the Court, Kitson advised Plaintiff--in a letter dated June 15, 2001--that her acceptance letter was "deemed unacceptable". (Id.) In a follow-up letter dated June 19, 2001, "Kitson notified Plaintiff of his proposal to separate Plaintiff from her employment with Defendant USPS because she had been out on medical leave for more than one year." (Id. at ¶ 22.) Thereafter, on July 11, 2001, through her then-attorney, Plaintiff sent Kitson a letter stating that she could return to work if the Postal Service could provide a "workplace free from sexual harassment and gender and/or sexually motivated or infused humor and comments." (Id.). In response, on July 23, 2001, Kitson sent a letter stating the Postal Service's no-tolerance policy, but not indicating a plan of accommodation for Plaintiff's disability. (See id. at ¶ 23). Hertzner contacted Kitson on August 10, 2001, to advise him that she had changed physicians and that her new psychiatrist needed additional time to perform a full evaluation of Hertzner before being able to advise her to return to work. Shortly thereafter, on August 14, 2001, Kitson decided to separate Plaintiff from her employment with the USPS.
In January 2003, Plaintiff filed a Charge of Discrimination Case against the Defendants with the Postal Service's Equal Employment Opportunity office. Plaintiff received a Notice of Right to Sue Within 90 Days on February 16, 2005. On May 17, 2005, Hertzner filed her initial complaint commencing this case. There is no record evidence that the May 17th complaint was served. Rather, the case docket evidences that Plaintiff filed her Amended Complaint (i.e., the Complaint subject to the instant Motion to Dismiss) on June 30, 2005.*fn1
The case docket contains a July 19, 2005 entry for a "SUMMONS Returned Executed" (see doc. #3) and a July 20, 2005 entry for a "SUMMONS Returned Executed" (see doc. #4). Document #3 is an Affidavit of Service purporting service of Plaintiff's Amended Complaint, together with a Summons, on Defendants Kitson and Smith on July 19, 2005, at the Farmingdale Postal Service building located at 318 Main Street in Farmingdale, New York. Document #4 is actually two Affidavits of Service purporting service of Plaintiff's Amended Complaint with the corresponding Summons on (1) the United States Postal Service and (2) on Postmaster General John E. Potter, both at 475 L'Enfant Plaza, SW, Washington, D.C. These affidavits indicate service on July 14, 2005. (See doc. #4.)
Further, the Court takes judicial notice of the following facts. In May 1999 and represented by her current counsel, Plaintiff filed a prior employment discrimination case against the then-Postmaster General, the USPS, the Equal Employment Office of the USPS, the Farmingdale post office postmaster and a supervisor, as well as five employees of the Farmingdale post office. See Hertzner v. Henderson, No. 99-CV-2544 (JM) (E.D.N.Y. 1999) (hereinafter, "Hertzner I"). In addition to a cause of action under Title VII, Plaintiff alleged causes of action under § 1983 and under various New York State statutory and common laws. All defendants moved to dismiss Hertzner's 1999 complaint with prejudice except for her Title VII cause of action against then U.S. Postmaster General Henderson. Plaintiff opposed the dismissal motion and cross moved to amend her 1999 compliant and to be able to cure service defects. In a February 14, 2000, Memorandum of Decision and Order, Judge Mishler determined that: (1) pursuant to 42 U.S.C. § 2000e-16c, the court lacked subject jurisdiction over the individual defendants and Hertzner "concede[d] that the joinder of the individual defendants was inappropriate," Hertzner I, slip op. at 2-3 (E.D.N.Y. Feb. 14, 2000), and (2) pursuant to Federal Rules of Civil Procedure 4(I) and 4(m), "[s]ervice of process was not made on the Postmaster General," id. at 3-5. The court stated: "In the instant case, the plaintiff's failure to make proper service occurred as a result of the plaintiff's counsel's error. This does not constitute a justifiable excuse for the failure to make proper service." Id. at 7. The court also found the Government "did not mislead the plaintiff or act improperly." Id. Thus, the court denied Hertzner's complaint in its entirety and with prejudice. See id. at 8.
A. Rule 12(b)(5) Motion to Dismiss Standard of Review
Where a defendant moves for dismissal under Rules 12(b)(2), (5), and (6), "the Court must first address the preliminary questions of service and personal jurisdiction." Mende v. Milestone Tech., Inc., 269 F. Supp. 2d 246, 251 (S.D.N.Y. 2003) (citing Arrowsmith v. United Press Int'l, 320 F.2d 219, 221 (2d Cir. 1963) ("logic compel[s] initial consideration of the issue of jurisdiction over the defendant--a court without such jurisdiction lacks power to dismiss a complaint for failure to state a claim")). Where a court is presented with a Rule 12(b)(5) dismissal motion arguing insufficiency of process, "' a Court must look to matters outside the complaint to determine whether it has jurisdiction.'" Id. (quoting Darden v. DaimlerChrysler N. Am. Holding Corp., 191 F. Supp. 2d 382, 387 (S.D.N.Y. 2002)). "'Conclusory statements that a defendant was properly served are insufficient to overcome a defendant's sworn affidavit that he was never served with process.'" Id. (quoting Howard v. Klynveld Peat Mrwick Goerdeler, 977 F. Supp. ...