The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
This is an action alleging claims pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII), as amended, 42 U.S.C. § 2000e et seq., the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., the Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601 et seq., the New York Human Rights Law ("NYHRL"), Executive Law § 290 et seq. , as well as various tort claims under New York State law. Now before the Court is Defendants' motion (Docket No. [#22]) to dismiss, or for summary judgment. For the reasons that follow, the application is granted in part and denied in part, and Plaintiff is granted leave to amend some of the claims.
Unless otherwise noted, the following facts are taken from Plaintiff's Complaint ("the Complaint") in this action. At all relevant times, Catherine Carlson ("Plaintiff") was employed by the Geneva City School District as a Media Library Specialist at Geneva High School; defendant David D. Pullen ("Pullen") was Principal at Geneva High School; defendant Carmine Calabria ("Calabria") was Assistant Principal at Geneva High School; defendant Michael Simon ("Simon") was Administrator of Human Resources and Sexual Harassment Complaint Officer for the Geneva City School District; and defendant Robert C. Young, Jr. ("Young") was Superintendent of the Geneva City School District. Plaintiff alleges that Pullen sexually harassed her, and that when she complained, all of the defendants retaliated against her in various ways. Plaintiff summarizes her claims as follows:
Ms. Carlson, who worked as a tenured Library Media Specialist at Geneva High School, began experiencing unwelcome, sexually harassing behavior from the High School principal, David Pullen (hereinafter, "Mr. Pullen") in or around 2005 ([Complaint] ¶¶ 29, 37-50). Mr. Pullen's conduct included making sexually suggestive comments to Ms. Carlson about her clothing, following her in the school hallways, trying to hold her hand, suggesting to Ms. Carlson that they get an apartment together, and becoming angry and yelling at Ms. Carlson when she rebuffed [his] advances (Id. ¶¶ 39-50). After enduring Mr. Pullen's harassing behavior for many months out of fear of retaliation if she complained, by November 2006, Mr. Pullen's behavior had escalated to the point where Ms. Carlson was prompted to make complaints about his harassing behavior to defendants and to her Union President (Id. ¶¶ 61-65). Within days after Ms. Carlson requested copies of Geneva's Sexual Harassment Policy and Complaint Forms, Mr. Pullen, in retaliation for Ms. Carlson's complaints about him, filed a false charge of sexual harassment against her (Id. ¶¶ 66-74). Defendants then placed Ms. Carlson, but not Mr. Pullen, on administrative leave and deleted emails from Ms. Carlson's school email account (Id. ¶¶ 69-72). After Ms. Carlson filed her formal Sexual Harassment Complaint against Mr. Pullen on December 4, 2006 (See Affirmation of Annette Gifford at ¶ 3 [hereinafter "Gifford Aff."]), Mr. Pullen filed an amended Sexual Harassment Complaint against Ms. Carlson on December 5, 2006, which was filled with false, malicious and defamatory statements, claiming nine separate instances of harassment (Compl. ¶¶75-81).
Defendants then embarked upon an investigation of the sexual harassment charges during which they attacked Ms. Carlson's professional and personal reputation by spreading false, malicious and defamatory statements about Ms. Carlson that caused others to believe that she had sold or provided drugs or alcohol to students and inappropriately touched or had sex with underage students (Id. ¶¶ 82-99).
After defendants concluded their investigation and allowed Ms. Carlson to return back to work from administrative leave on or about December 18, 2006, they continued their retaliation against her by subjecting her to new rules and restrictions and subjecting her to escalating disciplinary measures, culminating in her removal from her position as a High School Media Library Specialist and her placement in a less desirable position outside her tenure area teaching Structured Studies (essentially a form of in-school suspension) at the Middle School. First, defendants subjected Ms. Carlson to new rules and restrictions that did not apply to other faculty members by restricting the number of times she was permitted to leave the library, monitoring her use of bathrooms, monitoring her movements in and out of the library with a security camera and reprimanding her for leaving the library more often than the allotted number of times (Id. ¶¶ 102-108). Defendants also undermined Ms. Carlson's authority over the students by placing new restrictions on students' use of the library and reprimanding Ms. Carlson for actions which were previously permitted, such as allowing a student without a locker to store his jacket in the library (Id. ¶¶ 109-111). Defendants thereafter issued four separate letters of criticism against Ms. Carlson in January and March 2007 which were placed in her personnel file (Id. ¶¶ 112-118).
In March 2007, Ms. Carlson filed a charge of discrimination with the EEOC against defendants (Docket No. 22-5). In or about April 2007, defendants gave Ms. Carlson a false and negative annual performance evaluation and subsequently placed her on administrative leave beginning in or about May 2007 and continuing until June 2007 (Compl. ¶¶ 127-128). On June 11, 2007, defendants filed charges against Ms. Carlson pursuant to New York Education Law § 3820-a ("Ed. Law") and thereafter removed her from her position as High School Library Media Specialist and placed her in a less desirable position teaching Middle School Structured Studies (Compl. ¶¶ 129-136). (Plaintiff's Memo of Law [#23] at 1-3).
On May 5, 2008, Plaintiff commenced this action, asserting the following claims: 1) discrimination and retaliation under Title VII and NYHRL; 2) discrimination under the ADA; 3) violation of the FMLA; 5) defamation; 6) slander; 7) libel; 8) prima facie tort; and 9) intentional infliction of emotional distress ("IIED"). (Complaint at 19-21). Attached to the Complaint are Pullen's sexual harassment complaints against Plaintiff (Complaint, Exhibit A), and several disciplinary letters issued to Plaintiff by Calabria and Young. (Complaint, Exhibit B).
On May 22, 2009, Defendants filed the subject motion [#22] to dismiss and for summary judgment. Defendants primarily seek dismissal pursuant to Rule 12(b)(6), but add that "[s]ummary judgment is also appropriate at this early juncture because the application of the controlling law to the undisputed facts demonstrates that the claims asserted in the Complaint lack merit, and the limited facts beyond the pleadings relied upon to support the summary judgment motion are incontrovertible." (Defendants' Memo of Law [#22-5] at 24). The "limited facts beyond the pleadings" to which Defendants refer is an affidavit from Superintendent Young, attesting to the fact that the Geneva City School District was served with Plaintiff's EEOC complaint on March 23, 2007, and was not served with any other type of notice of claim prior to the commencement of this action. (Young Affidavit [#22-4]). A copy of Plaintiff's EEOC complaint, which appears to have been filed with the EEOC on March 9, 2007, is attached to Young's affidavit. Otherwise, Defendants' motion is based on the pleadings.
Defendants' motion contends the following: 1) all of Plaintiff's state-law claims must be dismissed, because Plaintiff did not comply with New York General Municipal Law § § 50-e and 50-i or New York Education Law § 3813; 2) the state-law claims are barred by the one-year statute of limitations found in Education Law § 3813; 3) the IIED cause of action must be dismissed because it fails to state a claim, is barred by the Worker's Compensation Law, and cannot be asserted against a municipality; 4) the prima facie tort cause of action must be dismissed because it fails to state a claim; 5) the causes of action for defamation, libel, and slander fail to state a claim; 6) the Board of Education should be dismissed from the action, since the School District is the real party in interest; 7) the Title VII and ADA claims must be dismissed as against the individual defendants; 8) the ADA cause of action does not state a claim; 9) the FMLA cause of action does not state a claim; 10) any of the discriminatory or retaliatory acts alleged under Title VII that occurred more than three-hundred days prior to the EEOC complaint are time-barred; 11) the Complaint does not state a claim for hostile environment or quid pro quo discrimination; and 12) Plaintiff cannot rely on the same conduct to support both a hostile environment claim and a retaliation claim.
Plaintiff opposes every aspect of Defendants' motion. In that regard, Plaintiff contends: 1) the Complaint states claims under Title VII for a hostile environment and retaliation; 2) the Title VII claims are timely under the continuing violation doctrine, and are reasonably related to the claims contained in the EEOC complaint; 3) the Complaint states claims under the ADA and FMLA, and to the extent that it does not, Plaintiff should be permitted to amend the Complaint; 4) the causes of action for defamation, libel, slander, IIED, and prima facie tort are adequately pleaded claims for which relief can be granted, and to the extent that they do not, Plaintiff should be permitted to amend the Complaint; 5) the state-law claims against the individual defendants are timely under New York's three-year statute of limitations contained in New York Civil Practice Law and Rules § 214(2); 6) the state-law claims against the municipal defendants are timely under the continuing violation doctrine; 7) Plaintiff complied with the state-law "notice of claim" requirements by filing her internal discrimination complaint and by service of her EEOC complaint; and 8) the Board of Education is a proper defendant in this action. In support of her opposition to Defendants' motion, Plaintiff submitted, inter alia, an affirmation from her attorney, Annette Gifford, Esq., and a copy of the sexual harassment complaint that she filed with the Geneva City School District on December 4, 2006. (Docket No. [#24]).*fn1
On December 10, 2009, counsel for the parties appeared before the undersigned for oral argument.
Defendants' motion is brought pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure ("FRCP"). With regard to the Rule 12(b)(1) application to dismiss for lack of jurisdiction, it is well settled that,
[a] case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. In resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a district court ... may refer to evidence outside the pleadings. A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.
Makarova v. U.S., 201 F.3d 110, 113 (2d Cir.2000) (citations omitted). The notice of claim provisions at issue in this action are jurisdictional in nature. See, Peek v. Williamsville Bd. of Educ., 221 A.D.2d 919, 920, 635 N.Y.S.2d 374, 376 (4th Dept. 1995) ("The failure of plaintiff to file a timely notice of claim, or to apply within the statutory period for leave to file a late notice of claim, is jurisdictional and precludes his causes of action[.]") (citing, inter alia, Education Law § 3813).
With regard to the 12(b)(6) application to dismiss for failure to state a claim, the legal standard to be applied is also clear:
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the claim is and the grounds upon which it rests. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S.544, 555, 127 S.Ct. 1955, 1964-65 (2007); see also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) ("To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient 'to raise a right to relief above the speculative level.'") (quoting Bell Atl. Corp. v. Twombly) (footnote omitted); Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (Indicating that Bell Atl. Corp. v. Twombly adopted "a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible[,]" as opposed to merely conceivable.), reversed on other grounds, Ashcroft v. Iqbal, 129 S.Ct.1937 (2009). When applying this standard, a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999).
The Court is limited as to what evidence it can consider in ruling upon a 12(b)(6) motion:
In considering a motion under Fed.R.Civ.P. 12(b)(6) to dismiss a complaint for failure to state a claim on which relief can be granted, the district court is normally required to look only to the allegations on the face of the complaint.
If, on such a motion, matters outside the pleading are presented to and not excluded by the court, the court should normally treat the motion as one for summary judgment pursuant to Fed.R.Civ.P. 56. In any event, a ruling on a motion for dismissal pursuant to Rule 12(b)(6) is not an occasion for the court to make findings of fact.
In certain circumstances, the court may permissibly consider documents other than the complaint in ruling on a motion under Rule 12(b)(6). Documents that are attached to the complaint or incorporated in it by reference are deemed part of the pleading and may be considered. In addition, even if not attached or incorporated by reference, a document upon which the complaint solely relies and which is integral to the complaint may be considered by the court in ruling on such a motion.
Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (citations and internal quotation marks omitted).
When in connection with a 12(b)(6) motion, matters outside the pleadings are presented, the Court may either exclude them, or may consider them and treat the motion as one for summary judgment. FRCP 12(d). If the court chooses the latter course, "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Id. However, summary judgment is rarely appropriate prior to discovery. See, Trammell v. Keane, 338 F.3d 155, 161 (2d Cir.2003) ("[O]nly in the rarest of cases may summary judgment be granted against a plaintiff who has not been afforded the opportunity to conduct discovery.").
Even if a court grants a motion to dismiss, the plaintiff may request leave to amend the complaint to correct the deficiencies:
It is the usual practice upon granting a motion to dismiss to allow leave to replead. Although leave to replead is within the discretion of the district court, refusal to grant it without any justifying reason is an abuse of discretion. Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.
Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (citations omitted), cert den., 503 U.S. 960, 112 S.Ct. 1561 (1992); see also, Panther Partners Inc. v. Ikanos Communications, Inc., No. 08-3398-cv, 2009 WL 2959883 at *4 (2d Cir. Sep. 17, 2009) ("Granting leave to amend [would be] futile if it appears that plaintiff cannot address the deficiencies identified by the court and allege facts sufficient to support the claim.") (unpublished; citation omitted).
New York's Notice of Claim Requirements
At the outset, Defendants maintain that the Court lacks subject-matter jurisdiction over Plaintiff's state-law claims, because Plaintiff did not comply with the notice of claim requirements in Education Law § 3813, subsections (1) and (2). Subsection (1) applies to ...