The opinion of the court was delivered by: Charles J. Siragusa U.S. District Judge
This discrimination case is before the Court on Defendants' motion to dismiss (Docket No. 6) and Plaintiff's cross-motion to amend her complaint (Docket No. 10). For the reasons stated below, Plaintiff's cross-motion is granted, and Defendants' motion to dismiss is granted in part, and the Court declines jurisdiction over the remaining state cause of action.
Plaintiff, formerly a nursing student at the University of Rochester School of Nursing, filed a complaint on October 11, 2007, raising three causes of action, two pursuant to 42 U.S.C. § 1981, based on her allegations that Defendants had discriminated against her because of her national origin and race, and retaliated against her when she complained of such discrimination. Her third cause of action is a state law claim for breach of an implied contract. On December 5, 2007, Defendants moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), and on December 19, 2007, Plaintiff filed a cross-motion seeking to amend her complaint pursuant to Rule 15. Defendants responded to Plaintiff's cross-motion by a reply filed on January 10, 2008.
The essential factual allegations in Plaintiff's proposed amended complaint are as follows:
7. Plaintiff was born on January 30, 1968 in Quezon City Phillippines, with an ethnicity and citizenship of "Filipino."
8. Plaintiff was married in Quezon City Phillippines on June 20, 1994 to Ben B. Malabanan Jr., an American citizen.
9. Plaintiff lived solely as a Filipino citizen until November 24, 1999, when she was naturalized as a citizen of the United States of America. Upon information and belief, however, Plaintiff maintained a dual citizenship.
10. Plaintiff was a nursing student with the named defendant since the summer of 2007. Accordingly, Plaintiff paid tuition to attend defendant's nursing program with the reliance that she would be able to complete said program and become a Registered Nurse.
11. It is well settled that a contract for educational services is a "contract" for the purposes of § 1981.
12. Plaintiff enjoyed above average evaluations as a student nurse, and as such, Plaintiff was qualified to fulfill the essential functions of the nursing program.
13. From the commencement of the program, Plaintiff was told on a near daily basis by Clinical Instructor Muxworthy that because she was a Filipino, her "thought process wasn't there" and that she would never become a nurse, further mocking Plaintiff's language skills. This severe and pervasive harassment created a hostile environment for Plaintiff based on her race (Asian), which encompasses and includes her ancestry and/or ethnic characteristics.
14. Plaintiff's Clinical Instructor also frequently informed Plaintiff that she could not be "trusted" and that Plaintiff might actually injure or kill her patients. Plaintiff's Clinical Instructor was and is a supervisor with defendant, thereby ...