The opinion of the court was delivered by: Townes, United States District Judge*fn1
On June 4, 2007, plaintiff pro se, Pamela Tilley ("Plaintiff"), filed this action pursuant to the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101, et seq., and Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. § 2000(e), et seq., against her former employer, defendant ADM Security Investigations ("Defendant" or "ADM").*fn2
Defendant now moves to dismiss Plaintiff's amended complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, Defendant's motion is GRANTED.
On or about June 5, 2006, Plaintiff filed a complaint with the New York State Division of Human Rights ("NYSDHR"), alleging that Defendant unlawfully discriminated and retaliated against her in violation of New York law. See Am. Compl. at 4, ¶ 9. On or about May 31, 2007, the NYSDHR issued a Determination and Order After Investigation ("NYSDHR Decision"), finding that there was insufficient evidence of a discriminatory practice and dismissing Plaintiff's complaint. See Compl., Ex. A.*fn3
Thereafter, on June 4, 2007, Plaintiff commenced this action by filing a form complaint alleging that Defendant unlawfully discriminated against her in violation of the ADA by terminating her employment, failing to accommodate her disability, providing her with unequal terms and conditions of employment, and retaliating against her. See Compl. at 3, ¶ 4. On June 15, 2007, this Court issued a Memorandum and Order granting Plaintiff's request to proceed in forma pauperis, and concluding that the complaint was both substantively and procedurally deficient. The Court ordered Plaintiff to file an amended complaint containing a short plain statement supporting her claim of discrimination under the ADA and a notice from the EEOC granting her a right to sue.
On June 18, 2007, Plaintiff filed an amended complaint in which she alleged that Defendant violated the ADA and Title VII. She also attaches two copies of the EEOC Dismissal and Notice of Rights ("Right to Sue Notice") that states, "[t]he EEOC has adopted the findings of the state or local fair employment practice agency that investigated this charge," here the NYSDHR. See Am. Compl., Ex. B.*fn4 Further, it sets forth that Plaintiff "may file a lawsuit against the [Defendant] under federal law based on this charge in federal or state court." Id.
Although the amended complaint contains substantially the same factual allegations as the initial complaint, Plaintiff now seeks relief pursuant to Title VII and the ADA. In essence, Plaintiff continues to allege that she was subject to harassment on the job, including being hospitalized due to rat droppings placed in her food, unlawful camera surveillance while in the bathroom, and eventually termination. See Am. Compl. at 3, ¶ 6 and 4, ¶ 8. Absent from both complaints is any allegation that Defendant committed these acts due to her unspecified disability or membership in a protected class. Now, Defendant moves to dismiss Plaintiff's action pursuant to Rule 12(b)(6).
In considering a motion to dismiss pursuant to Rule 12(b)(6), a court must accept all of the factual allegations in the complaint as true and must draw all reasonable inferences in the plaintiff's favor. See Erickson v. Pardus, - U.S. -, 127 S.Ct. 2197, 2200 (2007); OforiTenkorang v. Am. Int'l Group, Inc., 460 F.3d 296, 298 (2d Cir. 2006). A court must then determine whether a plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Twombly v. Bell Atl. Corp., - U.S. -, 127 S.Ct. 1955, 1974 (2007). As the Second Circuit recently stated, the "flexible 'plausibility standard'" enunciated in Twombly "obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (emphasis added).
Because "a Rule 12(b)(6) motion challenges the facts alleged on the face of the complaint . . . or, more accurately, the sufficiency of the statements in the complaint," see Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991) (internal citations omitted), cert. denied, 503 U.S. 960 (1992), a court deciding such a motion "is normally required to look only to the allegations on the face of the complaint." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). However, in some circumstances, a court may consider documents other than the complaint. For example, "[d]ocuments that are attached to the complaint or incorporated in it by reference are deemed part of the pleading and may be considered." Id. (citing Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1997), cert. denied, 525 U.S. 1103 (1999)).*fn5
The Court is cognizant that a pro se complaint is to be construed liberally, and interpreted to raise the strongest arguments it suggests. See Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007). Plaintiff's pleadings need only aver "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and that all "[p]leadings must be construed so as to do justice." Fed. R. Civ. P. 8(e). However, as demonstrated below, Plaintiff has failed to ...