The opinion of the court was delivered by: Seybert, District Judge
On July 21, 2008, Plaintiff, Brian Platt ("Platt"), filed a Complaint against the Incorporated Village of Southampton (the "Village"), the Board of Trustees of the Village (the "Board"), Mayor Robert Mark Epley, Bonnie M. Cannon, Nancy C. McGann, Paul L. Robinson, William F. Bates, and William Wilson Jr. ("Wilson") (collectively, "Defendants"). The Complaint alleges that the Defendants discriminated and retaliated against him in violation of his rights to free speech, equal protection, and substantive due process under the 14th Amendment. Plaintiff brings his claims pursuant to 42 U.S.C. § 1983, the American with Disabilities Act of 1990, 42 U.S.C. §§ 12112(b) and 12203(a), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e), and supplemental New York State law claims under the Human Rights Law, N.Y. Exec. Law § 290, et seq.
Pending before the Court is Defendants' motion to dismiss based on (1) Plaintiff's failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, (2) Plaintiff's lack of standing, and (3) the statute of limitations. Plaintiff also seeks permission to amend the Complaint. For the reasons stated below, Defendants' motion to dismiss is GRANTED in part and DENIED in part, and Plaintiff's cross-motion for permission to amend is DENIED.
Plaintiff is a resident and domiciliary of Suffolk County, New York, and was a Village employee at the time of the Complaint. (Pl's Comp. ¶ 5.) Plaintiff was a full-time police officer at the Southampton Village Police Department (the "Police Department"), and was also a member of the Southampton Village Police Benevolent Association Inc. ("PBA"). (Id. at ¶¶ 10, 13.) Plaintiff alleges that from 2003 through 2006, then Lieutenant, William Wilson ("Wilson") was having an affair with seasonal police officer Kim McMahon ("McMahon"). (Id. at ¶ 16.) Plaintiff claims that, as a result of his engaging in protected activity, including his reporting of the affair between Wilson and McMahon, he was subjected to a host of civil rights violations.
In November 2004, Plaintiff, along with two fellow police officers, met with Village Trustee Harold Steudte ("Steudte"), and informed Steudte about the purported affair between Wilson and McMahon. (Id. at ¶ 17.) The officers complained that because of this affair Wilson gave McMahon preferential treatment. Id. Plaintiff has not plead that any retaliatory action was taken by Defendants at that time. Approximately one year later, on November 13, 2005, Plaintiff took medical leave from the Police Department because of a back injury and Post Traumatic Stress Syndrome that he acquired during an on-duty incident. (Id. at ¶ 24.) On or about December 27, 2005, Sergeant Christopher Broich filed an EEOC Charge against the Village of Southampton and Lars King, the Chief of Police at the time, alleging discrimination based on race, disability, and national origin. (Id. ¶ 21.) The EEOC Charge, specifically named Plaintiff as a witness stating that "he is an 'excellent witness' because he is 'privy to information shared in the department concerning promotion opportunities.'" (Id. ¶ 22.) Defendants were served with this Charge. (Id.)
On August 25, 2006, approximately nineteen months after Plaintiff's meeting with Steudte regarding the alleged affair, Wilson, who had been appointed Chief of Police six weeks prior, issued General Order #83 ("Order 83"). (Id. at 25). Order 83 set operational guidelines for officers on leave from duty for various reasons, including as a result of injury. (Id. at ¶ 25.) It required officers to report to a supervisor via telephone and remain at home unless permission to leave was granted by the Police Department Administration. (Id. at ¶ 26.) ¶ 25]. Plaintiff claims that this action by Wilson violated the Collective Bargaining Agreement ("CBA") between the Village and the PBA, discriminated against him based on his disability, and retaliated against him for being named a witness in Broich's complaint and for reporting Wilson's affair. (Id. at ¶¶ 25, 27, 28.)
Although Order 83 was issued on August 25, 2006, Plaintiff was directed to comply with it commencing on September 7, 2006. Subsequently, on September 12, 2006, Order 83 was amended ("Amended Order 83").*fn2 In connection with the original Order 83, on September 13, 2006, Plaintiff sent Wilson a formal grievance claiming that Order 83 confined him to his home and his Post Traumatic Stress Syndrome was "greatly exacerbated" as a result. (Id. at ¶¶ 38, 39.) Wilson provided Plaintiff with a copy of Amended Order 83. (Id. at ¶ 42.) Plaintiff, in addition to the grievance, filed a Charge of Discrimination with the EEOC. (Id. at ¶ 40.) Plaintiff also served grievances to Mayor Epley on September 18, 2006, and to the Board on September 22, 2006, to which the Mayor denied and the Board never responded. (Id. at ¶¶ 44, 45.) Accordingly, Plaintiff has filed this action seeking relief based on retaliation and discrimination. Defendants have moved to dismiss the Complaint in its entirety (1) for failure to set forth a First Amendment, due Process violation, discrimination, or Title VII claim, (2) because Section 1983 claims are time-barred, and (3) because Plaintiff lacks standing. Plaintiff, in the contrary, has cross-moved to amend the Complaint.
I. Defendant's Motion to Dismiss
A. Standard of Review for a Rule 12(b)(6) Motion
In Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed. 2d 929 (2007), the Supreme Court disavowed the half-century old standard set forth in Conley v. Gibson 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." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed. 2d 80 (1957), (overruled by Bell Atl. Corp., 127 S.Ct. 1955 (2007). Holding that "Conley's 'no set of facts' language has been questioned, criticized, and explained away long enough," the Supreme Court expressly rejected the standard in favor of a requirement that the plaintiff plead enough facts "to state a claim for relief that is plausible on its face." Bell Atl. Corp., 127 S.Ct. at 1969, 1974. The Court explained that the complaint "must be enough to raise a right to relief above the speculative level." Id. at 1965. To be clear, Bell Atlantic does not require "heightened fact pleading of specifics, but only enough facts to state a claim for relief that is plausible on its face." Id. at 1974.
The Supreme Court offered further clarification of this standard in a recent decision, explaining that "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1940 (2009). However, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. In applying this standard, the district court must still accept the factual allegations set forth in the Complaint as true and draw all reasonable inferences in favor of Plaintiff. See Cleveland v. Caplaw Enter., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005).
In deciding a 12(b)(6) motion, the Court is confined to "the allegations contained within the four corners of the complaint." Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998.) Additionally, the Court may examine "any written instrument attached to [the complaint] or any statements or documents incorporated in it by reference" as well as any document on which the complaint relies heavily. Chambers v. Time Warner, Inc., 282 F.3d 147, 152-153 (2d Cir. 2002). "Of course, it may also consider matter of which judicial notice may be taken under Fed. R. Evid. 201." Kramer v. Time Warner, Inc., 837 F.2d 767,773 (2d Cir. 1991). Consideration of materials beyond those just enumerated requires conversion of the 12(b)(6) motion to dismiss to one for summary judgment under Rule 56. See id.
As outlined later in this Order, Plaintiff must demonstrate that any retaliation or discriminatory treatment that he suffered occurred as a result of his protected activity. Even if Plaintiff engaged in protected activity, he can only rely on alleged discriminatory or retaliatory treatment that occurred after he engaged in protected activity to establish his retaliation claims. Defendants correctly point out, however, that at least on two occasions, Plaintiff pleads allegedly retaliatory treatment that arose before he engaged in protected activity. According to the Complaint, Plaintiff first engaged in protected activity in November 2004. Therefore, by definition, any alleged mistreatment by Defendants that occurred before this time could not have been retaliatory. Thus, the Court will not consider as part of Plaintiff's prima facie case the following:
[(1)] On or about October 13th 2003, Wilson accused Plaintiff of throwing out McMahon's reports and threatened to fire him." [and]
[(2)] "On or about October 14th 2004, Wilson held a staff meeting. When Plaintiff arrived at the meeting, he was told that he, a senior officer, would be working the midnight shifts because McMahon was reassigned to his shifts. Sergeant Robert Romeo had an intense discussion with Plaintiff about McMahon taking his shifts. After the discussion, Romeo compiled a report stating that Plaintiff started a fight with him; however, no such fight took place. As a result, Wilson removed Plaintiff from the SWAT team, which not only precluded him from receiving at least ...