The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
Currently before the Court in this civil rights action brought by Karen A. Liparulo ("Plaintiff") is a motion for summary judgment filed by the Onondaga Central School District ("the School"), the Board of Education of the Onondaga Central School District ("the Board"), and William Rasbeck, individually and in his capacity as Principal of the Junior and Senior High School (collectively "Defendants"). For the reasons stated below, Defendants' motion is granted in part and denied in part.
I. GENERAL FACTUAL BACKGROUND
In March 2003, Plaintiff began her employment with the Onondaga Central School District as the Vice Principal of the Junior / Senior High School and the District's Athletic Director. When Plaintiff began her employment, she was placed on three-year customary probation. Her immediate supervisor was Defendant Rasbeck, who was the Principal of the Junior and Senior High School. Sometime between March 2003 and September 2004, Plaintiff complained to the Superintendent of Schools, Carolyn Costello, that Defendant Rasbeck had subjected Plaintiff to offensive conduct, including sexual harassment. In September 2004, Defendant Rasbeck evaluated Plaintiff's job performance, and rendered a number of negative conclusions. In October 2004, Plaintiff announced she was suffering from anxiety and depression. As a result, and upon her doctor's orders, Plaintiff took medical leave from work. After doing so for twelve weeks, she continued to do so. On January 25, 2005, the Board terminated Plaintiff effective February 25, 2005. (Compare Dkt. No. 25, Part 18 [Defs.' Rule 7.1 Statement] with Dkt. No. 27, Part 6 [Plf.'s Rule 7.1 Response].)
Familiarity with the remaining undisputed material facts of this action, as well as the disputed material facts, as set forth in the parties' Rule 7.1 Statement and Rule 7.1 Response, is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.) The Court will add only two points. First, Plaintiff's Complaint is verified, and thus has the force and effect of an affidavit for purposes of a motion for summary judgment.*fn1 Second, even where a party fails to comply with Local Rule 7.1, "[a] district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules [including the local rule requiring a response to a statement of material facts]." Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001); accord, Cruz v. Church, 05-CV-1067, 2008 WL 4891165, at *3 (N.D.N.Y. Nov. 10, 2008) (Suddaby, J.).
II. SUMMARY OF PLAINTIFF'S CLAIMS
On September 5, 2006, Plaintiff filed the current action, asserting the following claims against Defendants: (1) violation of the Family Medical Leave Act ("FMLA") at 29 U.S.C. § 2602 et. seq.; (2) violation of the Americans with Disabilities Act ("ADA") of 1990 at 42 U.S.C. § 120101 et. seq.; (3) violation of the Rehabilitation Act of 1973 at 29 U.S.C. § 701; (4) violation of the New York State Human Rights Law ("NYSHRL") at N.Y. Executive Law § 296; (5) retaliation under the ADA, NYSHRL, and Rehabilitation Act; (6) violation of Title VII of the Civil Rights Act of 1964 at 42 U.S.C. § 2000e-2; (7) retaliation under Title VII; (8) violation of Section 1983 of the Civil Rights Act of 1871 at 42 U.S.C. § 1983; (9) intentional infliction of emotional distress; (10) negligent infliction of emotional distress; (11) negligence; and (12) prima facie tort. (See generally Dkt. No. 1 [Plf.'s Compl.].) Familiarity with the factual allegations supporting these claims in Plaintiff's Complaint is assumed in this Decision and Order. (Id.)
III. LEGAL STANDARD GOVERNING MOTIONS FOR SUMMARY JUDGMENT
For the sake of brevity, the Court will not recite the well-known legal standard governing motions for summary judgment in this Decision and Order, but will direct the reader to the Court's recent decision in Pitts v. Onondaga County Sheriff's Dep't, 04-CV-0828, 2009 WL 3165551, at *2-3 (N.D.N.Y. Sept. 29, 2009) (Suddaby, J.), which accurately recites that legal standard.
A. Claims that Do Not Survive Summary Judgment
1. ADA, Title VII and Rehabilitation Act Claims Against Defendant Rasbeck
"Title VII does not create individual liability for violations of its terms." Linder v. City of New York, 263 F. Supp.2d 585, 594 (E.D.N.Y. 2003) (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1313-17 [2d Cir. 1995]), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). "Only the employer may be held liable, and is in fact held vicariously liable for a hostile work environment created by a supervisor with immediate or successively higher authority over the victimized employee." Linder, 263 F. Supp.2d at 594-95 (citing Burlington Indus., Inc., 524 U.S. at 765) (other citation omitted). In addition, "there is no individual liability under the ADA." Brady v. Dammer, 04-CV-1126, 2005 WL 1871183, at *9 (N.D.N.Y. Aug. 3, 2005) (Kahn, J.) (citations omitted). Finally, there is no individual liability under section 504 of the Rehabilitation Act. See Garcia v. S.U.N.Y. Health Sciences Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001); Darcy v. Lippman, 03-CV-6898, 2008 WL 629999, at *4 (S.D.N.Y. Mar. 10, 2008).
Here, Plaintiff has asserted ADA, Title VII and Rehabilitation Act claims against Defendant Rasbeck. For the reasons stated above, those claims are dismissed.
"[I]t is well-accepted that the "New York Workers' Compensation Law . . . provides an exclusive remedy for negligence actions by an employee against his/her employer such that the Worker's Compensation law bars a claim of negligent hiring, retention, and supervision." Smith-Henze v. Edwin Gould Services for Children and Families, 06-CV-3049, 2008 WL 4937555, at *5 (S.D.N.Y. Nov. 19, 2008) (collecting cases).
Here, Plaintiff has asserted a negligence claim against her employer. For the reason stated above, Plaintiff's negligence claim is dismissed.
3. Claim for Negligent Infliction of Emotional Distress
"Worker's Compensation is the exclusive remedy for negligence that occurs on the job, including claims for negligent infliction of emotional distress." Cvern v. Enterprise Solution Providers, Inc., 00-CV-8704, 2001 WL 533723, at *2 (S.D.N.Y. May 18, 2001); see also Arroyo v. Westlb Admin., Inc., 54 F. Supp.2d 224, 232 (S.D.N.Y.1999), aff'd, 213 F.3d 625 (2d Cir. 2000) ("In New York, recovery for accidental injuries arising out of and in the course of employment, including injuries caused by an employer's negligence, is governed by the Workers' Compensation Law. To the extent that a plaintiff may recover for his or her injuries under the Workers' Compensation Law, this law becomes the plaintiff's exclusive remedy against his or her employer. There is an exception, however, if the plaintiff pleads injury as a result of an intentional tort perpetrated by or at the direction of the employer. In that event, the employee can maintain an action for damages.").
Here, Plaintiff has asserted a claim involving a negligent tort (i.e., negligent infliction of emotional distress), not an intentional tort. For the reason stated above, Plaintiff's claim for negligent infliction of emotional distress is dismissed.
"The FMLA gives eligible employees an 'entitlement' to twelve workweeks per year of unpaid leave '[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.'" Sista v. CDC Ixis N Am., Inc., 445 F.3d 161, 174 (2d Cir. 2006) (quoting 29 U.S.C. § 2612[a][D]). In addition, "[t]he FMLA 'creates a private right of action to seek both equitable relief and money damages against any employer (including a public agency) in any Federal or State court of competent jurisdiction' should that employer 'interfere with, restrain, or deny the exercise of' FMLA rights." Sista, 445 F.3d at 174 (quoting Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721 ).
To establish a claim for interference with FMLA rights, a plaintiff must demonstrate the following: (1) she was an eligible employee under the FMLA; (2) her employer is an "employer" under the FMLA; (3) she was entitled to leave under the FMLA; (4) she gave notice to her employer of her intention to take leave; and (5) she was denied benefits to which she was entitled under the FMLA. Brown v. Pension Bds., 488 F. Supp.2d 395, 408 (S.D.N.Y. 2007) (citing Garraway v. Solomon R. Guggenheim Found., 415 F. Supp.2d 377, 382 [S.D.N.Y. 2006]). As the Second Circuit has noted, if a plaintiff is unable to return to work at the end of the twelve weeks of medical leave to which she is entitled, under 29 C.F.R. §§ 825.216(d) and 825.214(b), the employee no longer has the protections of FMLA and must look to the workers' compensation statute or ADA for any relief or protections. Sarno, 183 F.3d at161-62.
Here, even assuming that Plaintiff provided her employer with adequate notice of her intent to take twelve-weeks leave under the FMLA prior to her taking such leave, she has adduced no admissible record evidence establishing that her employer denied her such leave. The Court notes that it is undisputed that Plaintiff was absent from work for more than ...