The opinion of the court was delivered by: David G. Larimer United States District Judge
On June 9, 2006, plaintiff Catherine Lundy ("Lundy") initiated the instant action against the Town of Brighton and Chief of Police Thomas Voelkl (collectively "defendants"). Lundy, a former Town of Brighton police officer, alleges that she did not receive full benefits, including holiday and vacation time, during a disability leave she took as result of an on-the-job injury. Lundy claims that these benefits were discriminatorily denied to her on the basis of her gender, and in violation of federal law. Lundy later filed a discrimination charge with the New York State Division of Human Rights ("NYSDHR") relating to her disability leave.
Thereafter, Lundy claims that defendants subjected her to unfavorable job assignments and denied her sick time and/or disability leave in connection with a second leave of absence. As a result of these actions and others, Lundy contends that defendants ultimately compelled her to file for disability retirement, and negligently or intentionally made errors in her paperwork which caused her disability retirement benefit to be reduced by $750.00 a month. Lundy subsequently filed a second administrative charge with the Equal Employment Opportunity Commission ("EEOC").
This action followed. Plaintiff's Complaint alleges seven causes of action against the defendants: (1) unconstitutional retaliation in violation of her First Amendment rights pursuant to 42 U.S.C. §1983; (2) sex discrimination in violation of the Equal Protection clause of the Fourteenth Amendment, pursuant to 42 U.S.C. §1983; (3) unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"), arising out of plaintiff's reassignment, denial of sick time and compelled retirement; (4) unlawful retaliation in violation of the N.Y. Exec. Law §§290 et seq. ("N.Y. Human Rights Law"); (5) violation of the Family and Medical Leave Act, 29 U.S.C. §2601 et seq. ("FMLA"), arising out of defendants' alleged failure to offer plaintiff FMLA leave; (6) violation of the FMLA arising out of defendants' alleged retaliation against plaintiff for requesting leave; and (7) failure to accommodate plaintiff's known disabilities, in violation of the Americans with Disabilities Act, 42 U.S.C. §12101 et seq. ("ADA").
Defendant now moves to dismiss Lundy's Section 1983 claims against the Town of Brighton, her Title VII and ADA claims against Chief Voelkl, and her FMLA claims against both defendants, pursuant to Fed. R. Civ. Proc. 12(b)(6). Defendant also requests, pursuant to Fed. R. Civ. Proc. 12(f), that paragraphs 11-35 of the Complaint be stricken as containing irrelevant, salacious material. For the following reasons, defendant's motion to strike is denied, and defendant's motion to dismiss is granted.
In deciding a motion to dismiss under Rule 12(b)(6), a court must "accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994), citing Ad-Hoc Comm. of Baruch Black & Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987). The Court notes that the traditional Rule 12(b)(6) test, which permitted dismissal only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," has been rejected recently by the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, ____ U.S. ____, 127 S.Ct. 1955 (2007), which conclusively retired the "no set of facts" test and held that "a plaintiff's obligation . . . requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp., 127 S.Ct. at 1964-65 (citations omitted). See e.g., Transhorn, Ltd. v. United Technologies Corp., 2007 U.S. App. LEXIS 21086 at *6 n. 3 (2d Cir. 2007) (concluding that Bell Atlantic Corp.'s holding, which addressed an antitrust claim, is not limited to that context and "affects pleading standards somewhat more broadly"); Ashcroft v. Dept. of Corrections, 2007 U.S. Dist. LEXIS 49079 (W.D.N.Y. 2007) (discussing and applying the Bell Atlantic Corp. standard).
I. Lundy's First and Second Causes of Action: Section 1983 Claims Alleging Violation of Lundy's First and Fourteenth Amendment Rights, As Against the Town
In order to maintain a claim under Section 1983, plaintiff must show that defendants violated her Constitutional or federal statutory rights, and did so while acting under color of state law. See Parratt v. Taylor, 451 U.S. 527, 535 (1981). A municipality's liability under Section 1983 is limited, however, to "acts which the municipality has officially sanctioned or ordered. City of St. Louis v. Prapotnik, 485 U.S. 112, 123 (1988). As such, "the challenged action must have been taken pursuant to a policy adopted by the official or officials responsible under state law for making policy in that area of the [Town's] business." Id. See City of St. Louis v. Praprotnik, 485 U.S. 112 (1988) (City employee's allegations that his supervisors retaliated against him for filing a grievance by transferring him and eventually laying him off are insufficient to allege a Section 1983 cause of action, because employee failed to allege that anyone in city government promulgated, or even articulated, any unconstitutional municipal policy).
"A municipal policy may be inferred from the informal acts or omissions of supervisory officials. 'Municipal inaction such as the persistent failure to discipline subordinates who violate civil rights could give rise to an inference of an unlawful municipal policy of ratification of unconstitutional conduct.'" Poulson v. City of North Tonawanda, 811 F. Supp. 884, 896 (W.D.N.Y. 1993), quoting Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983). In order for such an inference to arise, an official's acts or omissions must be serious enough to suggest "deliberate indifference" to the plaintiff's constitutional rights: "mere lack of responsiveness, failure to supervise employees, or nonfeasance has been held insufficient to establish a causal link between a municipal custom or practice and a constitutional violation." Poulson, 811 F. Supp. at 896, citing Canton, Ohio v. Harris, 489 U.S. 378 (1989).
Initially, Lundy has not alleged that Chief Voelkl is responsible under state law for setting the Town's policies with respect to the issues described in her Section 1983 claims, including discrimination complaints, personnel disputes, FMLA compliance, or disability retirement applications. Furthermore, Lundy has not specifically identified the allegedly unconstitutional municipal policies, nor has she specified facts indicating that any Town actor promulgated, articulated or applied such policies. Instead, Lundy claims that Chief Voelkl's alleged pattern of knowing indifference to her complaints of sexual harassment creates an "inference" that such an unconstitutional policy existed and may be properly imputed to the Town.
A careful review of the First Amended Complaint, however, yields no allegations to support a conclusion that Chief Voelkl acted with deliberate indifference to Lundy's complaints of discrimination in violation of her First or Fourteenth Amendment rights. Although the Complaint vaguely alleges that Lundy complained to Voelkl about sex discrimination within the Town of Brighton Police Department, Lundy does not specify the timing, substance or circumstances of the alleged complaints. Lundy goes on to allege that at some point after one or more of her complaints, Voelkl assigned her to perform tasks and training that she did not desire, failed to inform her of her alleged right to FMLA leave when she sought two days of sick time in September 2004, and made errors on her disability retirement paperwork. Significantly, Lundy does not allege that Voelkl failed to investigate her complaints, or to discipline officers who engaged in harassing behavior. At most, even if Lundy had sufficiently alleged that Voelkl was a municipal policymaker, her allegations concerning his conduct describe nothing more than "mere lack of responsiveness" and "nonfeasance" with respect to her complaints of harassment, and thus are insufficient to state, with the specificity required by Bell Atlantic Corp., a claim for violation of Lundy's First or Fourteenth Amendment rights via an inferred municipal policy.*fn1 Bell Atlantic Corp., 127 S.Ct. 1955.*fn2
Accordingly, Lundy has failed to state a claim for violation of her First or Fourteenth Amendment Constitutional rights against the Town, and her first and second causes of action are dismissed as against the Town.
II. Lundy's Third and Seventh Causes of Action: Retaliation in Violation of Title VII and the ...