The opinion of the court was delivered by: Wood, U.S.D.J.
By motion dated September 8, 2006, Defendants move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated below, Defendants' motion is GRANTED in part and DENIED in part.
Plaintiff is a school teacher employed by the New York City Department of Education ("DOE").*fn2 On December 1, 2003, a student in Plaintiff's class "began intentionally bumping up against [her], falling onto her, . . . rubbing his genital area up against her . . . [and] referring to [her] as his 'wife.'" Compl. ¶ 23. The student also stole Plaintiff's wallet, cursed at Plaintiff during class, and threw physical objects at his fellow students. Plaintiff reported these incidents to her supervisor and wrote four reports regarding the student's behavior. In or around January or February 2004, Plaintiff filed a report with the police.
On January 6, 2004, the principal at Plaintiff's school observed Plaintiff's class and, allegedly in retaliation for reporting the student's disruptive behavior, gave Plaintiff an unsatisfactory rating. On June 17, 2004, the principal gave Plaintiff another negative review. As a result, Plaintiff has been unable to teach full time and instead works on a per-diem basis.
Plaintiff brings causes of action against Defendants for violation of the First Amendment; violation of 42 U.S.C. § 1983; breach of contract; negligence; and intentional infliction of emotional distress.
Defendants move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
A. Motion to Dismiss Standard
A defendant may move to dismiss a claim under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim on which relief can be granted. In weighing a motion to dismiss, the Court must "accept as true the factual allegations in the complaint and draw all inferences in the plaintiff's favor." Allaire Corp. v. Okumus, 433 F.3d 248, 249-50 (2d Cir. 2006). "A complaint may not be dismissed under the Rule unless it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts which would entitle him to relief." Id. at 250 (internal citations omitted).
B. Plaintiff's Claims Against the City of New York
Defendants argue that the Court should dismiss all of Plaintiff's claims against the City of New York because "Plaintiff makes no allegations of any kind directed to the City of New York or any of its employees" and "the DOE exists as a separate and distinct legal entity from the City." Defs.' Mem. at 11. The Court agrees. See Falchenberg v. New York City Dep't of Educ., 375 F. Supp. 2d 344, 347 (S.D.N.Y. 2005) ("T]he City and DOE are separate and distinct entities. . . . In the absence of any allegations demonstrating participation by the City, the complaint fails to state a cause of action against it.").*fn3
The Court, therefore, dismisses claims 1 through 6 as against the City of New York. The Court treats the DOE as a separate defendant for purposes of ...