The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiffs Sonia Fordham ("Plaintiff" or "Fordham") and John Fordham ("John Fordham") commenced this action alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. and the New York State Human Rights Law "NYSHRL"), N.Y. Exec. Law § 296, et seq. , as well as other state and common law causes of action.*fn1 Presently before the Court is the motion of Defendants Islip Union Free School District (the "District") and Diane Druckman ("Druckman") (collectively "Defendants") to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.*fn2 For the reason set forth below, the motion is granted in part and denied in part.*fn3
The following allegations are taken from the complaint. To the extent they are factual and non-conclusory, they are presumed true for purposes of this motion.*fn4
Plaintiff, who was born in 1948, was hired by the District in 1992 as a first grade teacher; she received tenure in 1994. (Compl. ¶¶ 8,17, 18.) Since 1995 Plaintiff has been assigned to teach first grade at the Wing Elementary School where her immediate supervisor has been Druckman, principal of the school. Throughout her employment with the District, Plaintiff has received favorable evaluations and in 2006 was honored as "Educator of the Year" by the Islip Children's Endowment. (Id. ¶¶ 19-21.)
During the 2006/2007 school year, the District provided the faculty with information concerning learning centers; Druckman advised Plaintiff that she was not required to incorporate learning centers into her classroom. (Compl. ¶¶ 22-23.) In March 2007, Druckman questioned Plaintiff about the amount of classroom time she used for arts and crafts. At a meeting held the following month, Druckman requested that Plaintiff limit arts and crafts in her classroom. (Id. ¶¶ 24-25.)
Druckman scheduled a plan book meeting with Plaintiff for April 25, 2007 and advised her to have a union representative present. According to Plaintiff, the meeting was conducted in a "harassing and demeaning manner in retaliation" for Plaintiff's efforts (1) "to voice her professional views on the use of arts and crafts in the classroom," (2) "to have 'Stop' signs replaced at the school which were missing," and (3) "have asbestos tiles removed from an instructional wing" of the school. (Compl. ¶¶ 26-28.) Plaintiff also claims that the tenor of the meeting was intended to "encourage and/or force" her to retire at the end of the year. (Compl. ¶ 29.)
On June 8, 2007 Druckman, "with malice, prepared an email and on June 11, 2007 caused said email to be widely distributed and disseminated throughout Wing Elementary School. " (Compl. ¶ 30.) The e-mail states in relevant part:
And thank you for listening to me yesterday . . . especially about SF. I know she is meeting with you to indicate what a fine teacher she is and how her students are doing so well . . . but she has some students she would like to retain and others are not doing "so well" and in her model (she has sideways rows of 4 since the BER conference) she never can read with them alone more than 2/week . . . others are able to read with their lowest daily . . . it's the parents fault since they have rejected retention. Just the thought of her revs me up . . . thanks for doing your magic to remind her of the expectations for next year from "the educator of the year." That may help to deal the deal. Have a super day. (Compl.¶ 30 & Ex. A.)
On June 19, 2007, Plaintiff received an end of year evaluation in which Druckman claimed disappointment that Plaintiff had not used learning centers during the school year despite having twice assured Plaintiff that she was not required to incorporate them. (Compl. ¶ 32.)
During the summer of 2007, Plaintiff's counsel wrote to both the District and the District's attorneys to "advise" them of "the adverse, harassing and discriminatory actions being taken by . . . Druckman against [Plaintiff] because of her age. " (Compl. ¶¶33-34.)
In September 2007, Plaintiff began the school year as a first grade teacher at Wing Elementary. On September 11, 2007 she was notified that she was to meet the following day with an attorney for the District. Plaintiff did meet with counsel and advised counsel that she wanted the District "to be aware of the problems so that no further adverse action would be taken against her." (Compl. ¶¶ 35-37.) According to Plaintiff, the District and its attorneys failed to properly investigate her claims of age discrimination and counsel prepared a document "purporting to be the findings of her investigation stating that there was no evidence of discrimination." (Compl. ¶ 39.)
Two days after the investigation report was issued, Plaintiff was called out of her classroom at Wing Elementary and directed to a meeting where "she was advised by school officials that an allegation of child abuse was made against her." (Compl. ¶ 40.) The allegation, to which Plaintiff attaches the label "child abuse," was made by Druckman and arose from her "purported observations" of which she prepared a written report. (Id. ¶¶ 41-42.) Druckman's report states in pertinent part:
I stopped into several classrooms, and then stood outside the door of room 201, as the door was closed.
As I looked into the classroom at approximately 1:02 p.m. I noted the class writing on small pieces of blue paper. There were water bottles on many children's desks. I noted one child in the last row of students from the door, at the end of that row. The child, [name], was drinking from her water bottle. I saw Mrs. Fordham walked [sic] quickly to the desk of that child from what appeared to be the front of the classroom. Mrs. Fordham took the water bottle from [the child's] hand as it was near her mouth, reach onto the desk and capped the water bottle. Mrs. Fordham then placed the water bottle on the desk. She then tapped the child on the head using her open hand. The child did not react to the tap, but picked up her pencil and began writing. [The child involved] is a child that Mrs. Fordham has brought to the attention of the social worker and psychologist. They are working with Mrs. Fordham to create a positive learning plan and behavior chart for this youngster. Earlier in the day, Mrs. Fordham brought to the attention of the aforementioned individuals that [the child] was going home on a play date with another child. She told the psychologist and the social worker that she could "use this" and tell [the child] that if she didn't behave that she couldn't go on the play date. When they suggested that it was up to the parent, Mrs.
Fordham said that she would call the parent. Both professionals counseled her that using the play date as a positive, rather than a negative might be more effective. My concern was that tapping [the child] on the head was not the most effective way to deal with this situation. (Ex. B to Compl.) "As a result of the notification of this false charge made against her" plaintiff was taken ill and has been unable to return to the classroom. (Compl. at ¶ 45.) Plaintiff "applied for catastrophic sick leave" and "was wrongfully denied same" by the District. (Id. ¶47.)
I. Motion to Dismiss Standard
Rule 8(a) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The Supreme Court has recently clarified the pleading standard applicable in evaluating a motion to dismiss under Rule 12(b)(6).
First, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Court disavowed the well-known statement in Conley v. Gibson, 355 U.S. 41, 45-46 (1957) that "a complaint should not be dismissed for failure to state a claim 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." 550 U.S. at 562. Instead, to survive a motion to dismiss under Twombly, a ...