The opinion of the court was delivered by: Michael A. Telesca United States District Judge
Plaintiff, Nancy Newman ("plaintiff"), in her complaint against defendant Leroy Central School District ("defendant" and/or the "District") alleges three causes of action. The first cause of action alleges age discrimination in violation of the Age Discrimination in Employment Act, 29 U.S.C. §621 et seq. ("ADEA"), the second cause of action alleges age discrimination in violation of the New York State Human Rights Law, Executive Law §290 et seq. ("NYSHRL") and the third cause of action alleges marital status discrimination in violation of NYSHRL. Defendant moves to dismiss plaintiff's second and third causes of action alleging age and marital status discrimination in violation of NYSHRL pursuant to Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction or in the alternative, pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Specifically, defendant claims that plaintiff's second and third causes of action warrant dismissal because plaintiff allegedly failed to comply with the notice of claim requirements of New York Education Law § 3813. In addition, defendant asserts that plaintiff's third cause of action should be dismissed due to plaintiff's alleged failure to procedurally exhaust her claims for marital status discrimination.
For the reasons which follow, defendant's motion to dismiss plaintiff's second and third causes of action alleging violations of NYSHRL is granted. This Court finds that plaintiff's Equal Employment Opportunity Commission ("EEOC") filing dated July 24, 2006 was not in compliance with the notice of claim requirements under Education Law § 3813.
Effective for the 2003-2004 school year, plaintiff was appointed to a three year probationary position as a physical education teacher. At the time of her appointment, plaintiff was forty-seven years old. On or about March 5, 2006, plaintiff was advised that she would be denied tenure as a physical education teacher. Plaintiff submitted a signed letter to the Administrators of the District on March 21, 2006, which stated in its entirety, "[t]his is to inform you of my resignation from the LeRoy Central School District effective June 30, 2006." See Neth Aff. at ¶ 2.*fn1 Plaintiff alleges that she was told by defendant that if, and only if, she resigned from her position, would she be given a "good reference" by the District enabling her to locate prospective employment. Acting pursuant to that letter, the District's Board of Education voted to accept plaintiff's resignation on March 28, 2006. See id. at ¶ 3. When the Board of Education voted to accept plaintiff's resignation, she was aware that she would not be working the following year. Plaintiff was eventually replaced by a 36 year old female, who is married and has children. Currently, plaintiff is 50 years old, unmarried and has no children.
Plaintiff filed a charge of discrimination with the EEOC on July 24, 2006 and notice of that charge was mailed to the District Superintendent on August 2, 2006. The EEOC issued plaintiff a Notice of Right to Sue on April 17, 2007. Thereafter, plaintiff commenced this action by filing a Summons and Complaint in the Western District of New York on June 15, 2007. According to defendant, plaintiff did not serve a notice of claim on the District at any time. Plaintiff concedes that she never served a notice of claim but argues that she was not required to since she is vindicating a public interest and not a private interest. Alternatively, plaintiff argues that her EEOC complaint is sufficient to satisfy the notice of claim requirement.
Rule 12(b)(1) of the Federal Rules of Civil Procedure provides for dismissal of the Complaint where the Court lacks subject matter jurisdiction over the dispute. 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. Dismissal of a complaint for failure to state a claim pursuant to Fed. R.Civ. P. 12(b)(6) is proper "where it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." See Harris v. City of New York, 186 F.3d 243, 247 (2d Cir.1999). The test is not whether plaintiff is ultimately likely to prevail, but whether he is entitled to offer evidence to support his claims. See Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir.1998). The court assumes that all factual allegations in the complaint are true, and draws all reasonable inferences in plaintiff's favor. See EEOC v. Staten Island Sav. Bank, 207 F.3d 144 (2d Cir.2000). Further, the Court must deny the motion "unless 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 Stewart v. Jackson & Nash, 976 F.2d 86, 87 (2d Cir.1992) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
II. Notice Of Claim Requirements Of Education Law § 3813
Pursuant to § 3813 of the Education Law of the State of New York a notice claim must be filed within ninety days of the alleged act of discrimination:
No action or special proceeding, for any cause whatever ... or claim against the district or any such school, or involving the rights or interests of any district or any such school shall be prosecuted or maintained against any school district, board of education ...unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim, and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment..........
See N.Y. Educ. L. § 3813(1).*fn2 The New York Court of Appeals has clearly stated that this law means what it says: "The Legislature has spoken unequivocally that no action or proceeding may be prosecuted or maintained against any school district or board of education unless a notice of claim has been 'presented to the governing body,' and this court may not disregard its pronouncement." See Parochial Bus Sys., Inc. v. Board of Educ., 60 N.Y.2d 539 (1983) (citations omitted); see also Rure Assoc., Inc. v. Dinardi Constr. Corp., 917 F.2d 1332 (2d Cir.1990). Moreover, the purpose of this notice of claim requirement is to provide prompt notice of claims so that an investigation may be made before it is too late for the investigation to be effective. See Parochial Bus, 60 N.Y.2d at 547. The essential elements necessary in the notice are the ...