The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiffs Kevin Chesney ("Plaintiff" or "Chesney") and Lorraine Chesney*fn2 brought the present suitagainst Valley Stream Union Free School District No. 24 (the "District"); Valley Stream Union Free School District No. 24 Board of Education; Joseph Conrad; Carole Meaney; Henrietta Carbonaro; Paul DePace; Anthony Iadevaio; Frank Nuara; Lawrence Trogel; Edward M. Fale ("Fale"); Lisa K. Conte; Charles Broceaur; Stephen Haramis (hereinafter, collectively, "District Defendants"); Local 74 Service Employee International Union ("Local 74"); "John Does and Janes Does A through D"; and the Nassau County Civil Service Commission (the "Commission") in the Supreme Court of the State of New York County of Nassau alleging violations of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. §§ 2601 et seq.; the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), 29 U.S.C. § 1166; the Americans with Disabilities Act ("ADA"), 42 U.S.C.A. § 12131 et seq; Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 1983 and 1985; the Equal Protection clause of the Fourteenth Amendment; the "Eighth Amendment right to confront his accusers"; and six state law claims. The action was removed to this Court in November 2005.
Currently before the Court is Plaintiff's motion for leave to file his Second Amended Complaint (the "SAC"). For the reasons set forth below, the motion is denied.
Factual and Procedural Background
Subsequent to the removal of the action from state court, the District Defendants moved to dismiss the Amended Complaint pursuant to Federal Rules of Civil Procedure 12(b)(4), (5), and (6). Defendant Local 74 moved separately to dismiss the Amended Complaint pursuant to Rule 12(c).
By Memorandum and Order dated September 22, 2006, the Court (1) dismissed all claims against Defendant Local 74 and (2) granted the District Defendants' motion to dismiss the claims against them with the exception of Plaintiff's COBRA claim.
Thereafter, the Commission moved to dismiss the Amended Complaint as to the claims asserted against it. By Memorandum and Order dated April 30, 2007, the Commission's motion was granted.
As a result of the two decisions set forth above, the lone surviving claim was Plaintiff's COBRA claim against District Defendants.
On October 29, 2006, Plaintiff moved for an extension of time until November 8, 2006 to move for reconsideration of the Court's September 22, 2006 decision. The application was granted. No motion for reconsideration was filed. Rather, on November 12, 2006, Plaintiff's counsel filed an "affirmation of actual engagement." In that affirmation, counsel stated she would be on trial and therefore unavailable to move to amend the complaint, move for reconsideration of the September 22, 2006 decision, or to proceed with discovery in this case "until further notice" and requested that "all activity" in this case be temporarily stayed pending counsel's availability. On November 13, 2006, the Court denied a further extension of time to move for reconsideration and denied the request for a stay of these proceedings.
By application dated February 13, 2008, Plaintiff sought permission to file a motion for leave to serve his proposed Second Amended Complaint. The Court addressed that application in an Order dated April 2, 2008 ( the "2008 Order"). In its 2008 Order, the Court noted that, in fact, the application sought two forms of relief, to wit (1) reconsideration of the September 22, 2006 Memorandum and Order, and (2) leave to amend the complaint to add three new causes of action. The Court denied the motion for reconsideration as untimely and because Plaintiff could not meet the strict standard for reconsideration. The Court granted leave to move to serve the Proposed Amended Second Complaint to assert three new causes of action*fn3 for (1) "fraud and record tampering;" (2) violations of the "ADA of 1990 and its New York counterpart;" and (3) violations of Section 504 of the Rehabilitation Act of 1973, as amended, and set a briefing schedule therefor.
Pursuant to the briefing schedule, as amended, on August 4, 2008, (1) Defendants' papers in opposition to the motion to file the Second Amended Complaint and (2) Plaintiff's reply papers in further support of the motion to amend were filed. Which is to say, the moving papers served by the Plaintiff were not filed on August 4, 2008. When the Court discovered the error, it directed that the moving papers be filed.*fn4
The Court notes that absent from the moving papers (as filed on March 31, 2009, and supplemented on April 1, 2009,) is any captioned document entitled "Second Amended Complaint" or the like. Rather, included is a document commencing with numbered page 7 and continuing to page 18 that appears to be the proposed pleading. Indeed, Defendants' opposing papers, filed August 4, 2008, note the receipt of only the document with pages 7 through 18 and the absence of any captioned document purporting to be the proposed second amended complaint. In apparent recognition of the omission, Plaintiff's reply papers as filed on August 4, 2008, include a complete document with caption, entitled "Second Amended Verified Complaint." The document entitled "Second Amended Verified Complaint" includes the causes of action dismissed by the Court's Memorandums and Orders. In referencing the SAC, the Court shall be referring to the "Second Amended Verified Complaint" attached to Plaintiff's reply papers, although the Court's discussion shall be limited to the three causes of action referenced in the Court's April 2, 2008 Order, to wit the fourteenth ("fraud and work record tampering'), fifteenth (violations of the ADA and its New York counterpart), and sixteenth causes of action (violation of Section 504 of the Rehabilitation Act).
The facts as alleged in the SAC, which are accepted as true for purposes of this motion, that relate to the proposed new claims are as follows:
Chesney began employment with the District as a "Cleaner" on October 3, 2003. (SAC ¶¶ 12, 13, 15.) He attained permanent civil service status effective April 5, 2004. (Id. ¶¶ 13-14.) On May 17, 2004, after cleaning the vast majority of the school on his own, Plaintiff began to "break down" the gym, which he had set up the night before for a Parent Teachers Association event, and get it ready for the annual school budget vote. (Id. ¶¶ 18-19.) "[W]hile performing his duties he felt a 'pop' in his back, which turned out to be a herniation with serious sequilae;" nevertheless, he continued to work until he completed his duties for the day. (Id. ¶ 21.) The next day he "could barely get out of bed" but went to the District to fill out an accident report. He "missed several days of work due to the injury and doctors' appointments." (Id. ¶ 24.) On or about May 25, 2004, he submitted a workers' compensation claim. (Id. ¶ 26.)*fn5 "Due to the extent of his injury, Chesney could not continue to return to his job for a period of time. Chesney notified his superiors of the reason he could not come to work at this time. On or about June 9, 2004, he left work early and did not return at that time due to his disability." (Id. ¶¶ 28-30.)
On or about June 11, 2004, Defendant Steven Haramis contacted Superintendent Fale claiming Plaintiff was driving a cab. Fale then ordered an investigation of Plaintiff's second job as a taxi driver, which Plaintiff claims "was a legal second job under Worker's Compensation Law." (SAC ¶¶ 51-52.) District personnel sent a letter to the taxi company threatening legal action if it did not provide the District with all information about Plaintiff's employment. (Id. ¶ 55.)
On June 14, 2004, Plaintiff was advised to attend an emergency meeting with the Superintendent that afternoon. At the meeting, Superintendent Fale stated "You were seen driving a cab at about 6:30 p.m. on June 11; you cannot be employed or receive any income while receiving workers' compensation benefits; that is insurance fraud, working your second job and being out sick while I'm paying for overtime is theft of services. We are terminating you, but if you resign right now, you will leave with a good recommendation, clean record, and I will allow you [to] pursue your compensation claim." (Id. ¶ 60.) Presumably, Chesney declined the offer. Defendant Board voted to terminate Chesney based on the recommendation of Superintendent Fale. (Id.)
Chesney claims he was "terminated unlawfully in part because he was known and/or perceived to be disabled. . . . In contrast to Chesney, Haramis, a similarly situated employee custodial worker, received leave time from Fale for an alleged injury just ...