The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge
On April 22, 2008, plaintiff filed a pro se action alleging, inter alia,employment discrimination. On July 31, 2008, defendants moved to dismiss the complaint in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff opposed the motion to dismiss through an affirmation from counsel and a request for leave to file an Amended Complaint, attached as an exhibit to counsel's affirmation, which, according to plaintiff, moots the motion. The Amended Complaint asserts claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., and the American with Disabilities Act ("ADA"), 42 U.S.C. § 12111, et seq. It also asks the court to exercise supplemental jurisdiction over claims arising under the New York State Human Rights Law § 290, et seq., and the New York City Administrative Code § 8-101, et seq.
For the reasons set forth below, plaintiff's request for leave to file the Amended Complaint is granted, but his request for an order to have defendant's motion to dismiss declared moot is denied. Defendants' motion to dismiss is granted, and plaintiff's Amended Complaint is dismissed in its entirety.
Plaintiff seeks leave to file an Amended Complaint, which alleges that defendants discriminated against him on the basis of disability and retaliated against him for requesting a reasonable accommodation of his disability, in violation of the ADA and Title VII. Plaintiff also asserts retaliation and disability claims under the New York State Human Rights Law and the New York City Administrative Code. Plaintiff argues that his submission of an Amended Complaint renders moot defendants' motion to dismiss.
Plaintiff has been employed by defendant Penauille Servisair LLC ("Penauille") since July 1994. (Am. Compl. ¶ 14.) Although plaintiff was initially employed to work at JFK airport, he was transferred to LaGuardia Airport in June 2005. (Id. at ¶¶ 33-34.) On or about April 4, 2007, plaintiff sustained severe back injuries and was subsequently advised by his physician that he could return to work as long as he was not required to engage in heavy lifting. (Id. at ¶¶ 16-17.) Plaintiff alleges that this injury resulted in a physical impairment that limits one or more of his major life activities, and that he is regarded by Penauille as having such impairment. (Id. at ¶¶ 25-26.) As such, he claims to have a disability within the meaning of ADA. (Id.)
Following his injury, on April 14, 2007, plaintiff asked Linda Montano, general manager, to allow him to return to work on the terms recommended by his physician, which involved appointing him to "light duty" as an office or clerical worker. (Id. at ¶¶ 18, 26, 48.) Although Ms. Montano initially granted his request, plaintiff alleges that he was subjected to harassment and unfounded pretextual charges of poor performance both before and after his return to work. (Id. at ¶¶ 20-25.) Specifically, plaintiff claims that, on at least two occasions, Penauille employees forced him to engage in heavy lifting and "other tasks injurious to plaintiff's health." (Id. at ¶ 25.) On May 15, 2007, while plaintiff was on light duty, he was advised by co-worker Manny Martins to undertake duties that were against medical advice and would further injure plaintiff. (Id. at ¶ 49.) Plaintiff also alleges that, on June 1, 2007, defendant John Lane, a maintenance manager, instructed a co-worker to have plaintiff move carts that weighed over 600 pounds by himself, causing plaintiff to reinjure his back and hurt his ankle. (Id. ¶ 50.)
The Amended Complaint alleges that, on June 8, 2007, plaintiff was suspended from Penauille for allegedly threatening management. (Id. ¶ 51.) His suspension was followed by a meeting on June 13, 2007 regarding this incident and the addition of a letter to plaintiff's personnel file. (Id. at ¶ 52.) Plaintiff was terminated on June 20, 2007 based "on his breach of company policy." (Id. at ¶ 53.) On June 21, 2007, plaintiff's wife called worker's compensation to inquire about the status of certain checks that plaintiff was supposed to receive, but was told that there was no record of a reinjury and that the company had failed to inform the worker's compensation office of any sort of injury. (Id. at ¶ 54.)*fn1
Defendants contend that plaintiff's proposed Amended Complaint and accompanying attorney affirmation do not cure the legal deficiencies of his claims and are insufficient to avoid dismissal at this juncture. Defendants ask the court to consider Exhibits "B" through "H" annexed to their memorandum of law in support of their motion to dismiss on the ground that they have been incorporated by reference into the complaint, and argue that plaintiff's disability claims are partially-time barred. They further move for dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that plaintiff failed to allege any qualifying adverse employment actions or meet the threshold pleading requirements of a discrimination or retaliation claim under Title VII and the ADA.
Rule 12(b)(6) of the Federal Rules of Civil Procedure states that a defendant may move, in lieu of an answer, for dismissal of a complaint for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). On a motion to dismiss, the court "accept[s] as true the factual allegations of the complaint, and construe[s] all reasonable inferences that can be drawn from the complaint in the light most favorable to the plaintiff." Arar v. Ashcroft, 585 F.3d 559, 567 (2d Cir. 2009).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. A complaint cannot make merely "a formulaic recitation of the elements of a cause of action," but must allege facts that "raise a right of relief above the speculative level on the assumption that all allegations in the complaint are true (even if doubtful in fact)." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, at the motion to dismiss stage, courts must adjudicate the sufficiency of plaintiff's claims under "'a heightened pleading standard in those contexts where factual amplification is needed to render a claim plausible.'" Turkmen, 589 F.3d at 546. (quoting Ross v. Bank of America, N.A. (USA), 524 F.3d 217, 225 (2d Cir. 2008).
B. Plaintiff's Request for Leave to File Amended Complaint
Since plaintiff's original complaint was filed pro se, the court grants plaintiff's request for leave to submit the Amended Complaint, which was filed with the benefit of counsel. See FED. R. CIV. P. 15(a) (allowing a party to amend its pleading "once as a matter of course at any time before a responsive proceeding is served"); Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009) ("[A] pro se complaint is to be read liberally," and "should not [be] dismiss[ed] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.") (internal quotation marks and citation omitted); see also In re Biotech AG Sec. Litig., 07-cv-06728 (DC), 2009 WL 5125130, at *4 (S.D.N.Y. Dec. 29, 2009) (citing Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir. 1990)) ("The decision to grant leave to amend is within the sound discretion of the trial court."); Posadas de Mexico, S.A. de C.V. v. Dukes, 757 F. Supp. 297, 300 (S.D.N.Y. 1991) (finding that leave to amend should be granted unless the motion is product of bad faith or dilatory motive, will prejudice opposing party, or be futile).
C. Plaintiff's Request for an Order Declaring Moot Defendants' Motion to Dismiss and Defendants' Request for Default ...