The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff, Mary T. Donlon, brings this action asserting claims of age discrimination and retaliation pursuant to the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq . ("ADEA"), the New York State Human Rights Law, Executive Law §290 et seq. ("Human Rights Law") and 42 U.S.C. § 1983. Defendants bring the instant motion seeking to: (1) dismiss plaintiff's 42 U.S.C. § 1983 claim in its entirety; and (2) dismiss plaintiff's state law claim on jurisdictional grounds, or in the alternative dismiss plaintiff's claim against the individual defendants on several grounds. Further, defendants allege that dismissal of plaintiff's claims is mandated because the scope of the lawsuit, and in particular plaintiff's state law claim, has been altered by this Court's January 12, 2007 Decision and Order ("January Decision"). In addition, defendant states that plaintiff's theory of recovery pursuant to 42 U.S.C. § 1983 is not supported by law.
For the reasons which follow, defendants' motion is denied in part and granted in part. This Court finds that the ADEA does not preempt claims under § 1983 for age discrimination. Accordingly, defendants' motion to dismiss plaintiff's § 1983 claim is denied. Moreover, plaintiff's federal claims and her New York State Human Rights Law claim derive from a common nucleus of operative fact and satisfy the requirements of 28 U.S.C. § 1367(a). Therefore, the Court finds that it has supplemental jurisdiction over plaintiff's Human Rights Law claim. However, the Court declines to exercise supplemental jurisdiction over claims brought against the individually-named defendants under the State Human Rights Law.
Plaintiff, Mary T. Donlon ("plaintiff"), has been employed since 1989 by the defendant Greece Central School District ("District") as a second grade school teacher. In 1990 plaintiff was granted tenure when she was forty-one years of age. On January 31, 2004, plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging discrimination and retaliation against the District only.
On January 13, 2006 plaintiff commenced this action against the District, the Board of Education of the Greece Central School District (the "Board"), Steven L. Watts ("Watts"), Kathleen Pagano-Fuller ("Pagano-Fuller"), Barbaranne Tolomeo ("Tolomeo"), Christopher Miller ("Miller"), and Kathleen Graupman ("Graupman") (collectively "defendants") claiming age discrimination and retaliation in violation of the ADEA, the Human Rights Law and §1983. On February 22, 2006, plaintiff filed a motion seeking either: (1) a declaration that her filing of a charge of age discrimination and retaliation against defendants on January 31, 2004 with the EEOC constituted substantial compliance with the notice of claim requirements of the Education Law; or in the alternative (2) an extension of time to serve a notice of claim.
The January Decision granted in part and denied in part the plaintiff's motion. Specifically, the Court found that plaintiff's filing of a charge of discrimination and retaliation with the EEOC in 2004 constituted compliance with the notice of claim requirement pursuant to Education Law § 3813. To the extent however that plaintiff's EEOC filing related to alleged discriminatory or retaliatory acts alleged to have occurred before October 31, 2003 (three months prior to her filing), this Court found that those claims were untimely. In this regard, this Court held that the continuing violation doctrine was inapplicable to plaintiff's claims. Further, this Court concluded that plaintiff's request to serve a late notice of claim up to and including March 8, 2006 is untimely, to the extent it relies upon alleged acts of discrimination and retaliation prior to March 8, 2005. However, this Court granted plaintiff's motion for an extension to serve a late notice of claim concerning plaintiff's New York State Human Rights Law claims arising between March 8, 2005 and March 8, 2006.
Plaintiff filed a Second Amended Complaint on March 16, 2007. In her Second Amended Complaint, plaintiff asserts that she was subject to different terms and conditions of employment compared to her younger peers and such conduct is alleged to have occurred over a five year period beginning in 2002 to the present. Such conduct includes the denial of her applications for summer employment, unwarranted discipline and poor performance evaluations. In addition, plaintiff asserts that defendants retaliated against her for her opposition to alleged acts of age discrimination. Defendants have raised several affirmative defenses to the claims.
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of the complaint where the plaintiff has failed to state a claim upon which relief can be granted. In reviewing a motion to dismiss pursuant to Rule 12(b)(6), the court must accept the factual allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir.2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.2005). Dismissal is warranted 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." See Weixel v. Board of Educ. of City of New York, 287 F.3d 138, 145 (2d Cir.2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The appropriate inquiry is "not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." See Twombly v. Bell Atl. Corp., 425 F.3d 99, 106 (2d Cir.2005), cert. granted, --- U.S. ----, 126 S.Ct. 2965 (2006).
II. Claims under 42 U.S.C. Section 1983
In count three, plaintiff alleges, that the "[d]enial of summer employment, creation of a hostile work environment, and discrimination in the terms and conditions of public employment on the basis of age, as well as retaliation for opposing discriminatory practices, by state actors, amount to a violation of the right to equal protection of the laws, as guaranteed by the 14th Amendment to the U.S. Constitution." See Second ...