The opinion of the court was delivered by: Seybert, District Judge
Plaintiff commenced this action alleging employment discrimination in violation of the Americans with Disabilities Act, 42 U.S.C. § 1112 et seq., as amended ("ADA"), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., as amended ("ADEA"), Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended ("Title VII"), 42 U.S.C. § 1983, and New York Executive Law § 296. Additionally, Plaintiff alleges claims for intentional infliction of emotional distress, tortuous interference with contract, common-law breach of fiduciary duty, and violations of New York State Labor Law § 740. After the dismissals of several other parties, the following parties remain as Defendants: Town of Southold ("Town") and Town Board of Southold (collectively, "Town Defendants"), Peter Harris ("Harris"), CSEA Local 1000 AFSCME AFL-CIO ("CSEA" or "Union"), and President Nicholas J. LaMorte ("LaMorte"). Pending before the Court are Defendants' three motions to dismiss. For the reasons that follow, the motions are GRANTED.
Plaintiff was employed by the Town in its Highway Department as an Auto Equipment Operator. Despite his title, Plaintiff alleges that he was assigned and performed the duties of Labor Crew Leader. (Am. Compl. ¶¶ 16, 27.) In 1993, Plaintiff alleges, the Town began a policy of retaliation and reprimands against him because of his protected speech about "his dissatisfaction with the Town's violations and disregard for environmental laws and public safety" (Id. ¶¶ 29-30.)
In 2001, Plaintiff was diagnosed with multiple sclerosis. (Id. ¶ 31.) In 2003, Plaintiff began treatment for depression. (Id. ¶ 34). In early 2004, the Town arbitrarily altered the procedure for him to take sick and vacation leave in order to harass and hinder him and refused to grant him medical leave without pay, even though the Town was aware of his impairments and needs. (Id. ¶¶ 35-37.) Additionally, at some unspecified time in 2004, Plaintiff was demoted to the position of Laborer (Id. ¶ 39.)
Between February and April 2004, Plaintiff filed several complaints against his supervisor regarding verbal abuse and harassment; but Plaintiff does not specify the bases for these actions in the Amended Complaint. (Id. ¶ 38.) In April 2004, the Town attorneys notified Plaintiff that they would investigate his complaints. (Id. ¶ 40.)
On June 23, 2004, the Town Controller ordered Plaintiff to return to duty without the required clearance from the Employees Assistance Program (EAP) or the return to duty test. (Id. ¶ 42.) Approximately two weeks later, on July 6, 2004, Plaintiff was injured while at work and suffered complications to both arms and elbows. (Id. ¶ 43.) The next morning, Plaintiff went to the Town's shop to request a form to report the workers' compensation injury and a leave slip for reporting sick that day due to his July 6th injury. (Id. ¶ 45.) While completing the report, Plaintiff was given a "closed document" and a ferry reservation card without explanation. (Id. ¶ 46.) When Plaintiff opened and read the document, he realized that the ferry had left, and he could not report to Groton, Connecticut to sit for the return to duty test that morning. (Id. ¶ 47.) The following week, Plaintiff received the Town Attorney's report finding no harassment. (Id. ¶ 52.) By letter dated July 26, 2004, Plaintiff requested an appeal of that determination, (id. ¶ 53.), but, Plaintiff claims, he never received a response to his appeal. (Id. ¶ 54.)
Plaintiff was served with notice for a Civil Service hearing on or about July 29, 2004. A hearing was held and a decision rendered on August 30, 2004 on the basis of insubordination and/or misconduct. The determination did not address the issues of disability discrimination, retaliation or accommodations. (Id. ¶ 55.) On September 7, 2004, the Town terminated Plaintiff's employment. (Id. ¶ 56.) At some unspecified time thereafter, Plaintiff appealed the Civil Service determination and served a notice of claim upon the Town. (Id. ¶ 57.) On or about March 14, 2005, the Town conducted a General Municipal Law § 50-h examination of Plaintiff. (Am. Compl. ¶ 59.) By letter dated July 26, 2005, the Town notified Plaintiff that it would not engage in settlement negotiations at that time. (Id. ¶ 61.) On August 31, 2006, Plaintiff filed a charge with the New York State Division of Human Rights ("NYSDHR") alleging disability discrimination and retaliation. (Id. ¶ 20.)
On or about June 23, 2008, the NYSDHR mailed Plaintiff a Determination and Order After Investigation, in which it stated: "the State Division has determined that there is NO PROBABLE CAUSE to believe that the respondents have engaged in or are engaging in the unlawful discriminatory practice complained of[.]" (Id. ¶ 21.) The findings stated that Plaintiff's employment was terminated because (1) he did not follow through with the EAP program, (2) tested positive for marijuana, (3) violated the Town's sick leave policy, and (4) violated the terms of an agreement by refusing to submit to a drug and alcohol test. Additionally, the NYSDHR found any claims regarding actions that took place prior to August 31, 2005, for the purposes of the Human Rights Law, and prior to November 4, 2005 for the purposes of Title VII and the ADA, are untimely. All of the alleged discrimination and harassment that the Complainant claims to have suffered, with the exception of his claim regarding his retirement benefits . . . occurred prior to, and culminated in, [the] Town's termination of the Complainant's employment on September 7, 2004. Consequently, all of the Complainant's claims regarding events which occurred during his employment with the Town are time-barred by the applicable statutes of limitation, and must be dismissed. (Id. ¶¶ 21-22.) The complaint was therefore dismissed. (Id.) The NYSDHR's notice advised that Plaintiff could appeal its Determination to the New York State Supreme Court within 60 days after service of the Determination. (Id.) Plaintiff did not appeal that Determination, but requested a review of the NYSDHR determination by the Equal Employment Opportunity Commission ("EEOC"). On August 11, 2008, the EEOC issued a "Dismissal and Notice of Rights" letter. (Id. ¶¶ 23-24.) The EEOC adopted the NYSDHR's findings in full.
On November 6, 2008, Plaintiff initiated this case. On April 17, 2009, this Court issued a notice of impending dismissal for failure to prosecute the action ("April 2009 Order"), which stated in relevant part:
The above-captioned case was filed on Nov. 6, 2008. There has been no affidavit of service filed, nor any other submissions by plaintiff, in the five months since.
IT IS HEREBY ORDERED that, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, this case will be dismissed, without prejudice, for lack of prosecution if, within fifteen (15) days from the date of this order, no further explanation for the lack of proceedings has been FILED AND APPROVED by this Court.
The plaintiff must show good cause for failure to serve the summons and complaint within the 120 days pennitted, pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. (Apr. 2009 Order 1.) On May 5, 2009, Plaintiff's counsel filed an affirmation of good cause requesting that the Court excuse the failure to timely serve the Summons and Complaint. On May 8, 2009, more than two months after the expiration of Plaintiff's time for serving the Summons and Complaint, the Town Defendants were served with the Summons and Complaint. Then, on July 31, 2009, Plaintiff filed an Amended Complaint and properly effectuated service. CSEA and the Town Defendants filed their motions to dismiss on August 10, 2009, and on December 24, 2009, Harris filed his motion, arguing that Plaintiff has failed to state a claim for a variety of reasons, including that Plaintiff's claims are time-barred. In an attempt to circumvent the statute of limitations, Plaintiff points out that it timely appealed the determination of the NYSDHR, but does not address his initial failure to submit a complaint to NYSDHR in a timely manner.
I. Applicable Standard Of Review Under Rule 12(b)(6)
On a motion to dismiss pursuant to Rule 12(b)(6), a plaintiff must satisfy 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. Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007). The complaint must be enough to raise a right to relief above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed. 2d 1965 (2007). This standard does not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Id. at 1974. In applying this standard, the district court must 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). Additionally, 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.) However, the Court may examine any written instrument attached to [the ...