The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.
MEMORANDUM OPINION AND ORDER
Plaintiff Jane Lewinter, a New York City school teacher, filed this action on January 12, 2009, alleging that Defendants New York City Department of Education ("DOE") and Sara Scrogin -- principal of the East Bronx Academy for the Future -- violated her rights under Section 102 of the Family Medical Leave Act, 29 U.S.C. § 2615. (Docket No. 1) The Complaint alleges that Defendants violated the notice provisions of the FMLA, and that -- after Plaintiff missed six weeks of work due to non-elective surgery -- Defendants retaliated against her for taking medical leave and created a hostile work environment through a pattern of trumped-up, negative performance evaluations. In addition to her claims under the FMLA, Plaintiff seeks damages for intentional infliction of emotional distress.
On July 23, 2009, Plaintiff sent a letter to the Court requesting a conference to discuss amending the Complaint. On December 18, 2009, Plaintiff filed a motion for leave to file an amended complaint adding a claim against both defendants for disability discrimination under the New York City Human Rights Law § 8-102(16)(1) ("NYCHRL"). (Proposed Am. Cmplt ¶¶ 27-28) Plaintiff also seeks permission to file a late notice of claim under Education Law § 3813(2-a). (Docket No. 13) For the reasons stated below, Plaintiff's motion for leave to file an amended complaint will be granted in part and denied in part, and her request to file a late notice of claim will be denied.
Plaintiff has been employed as a tenured teacher by the DOE for more than seven years. (Cmplt. ¶ 7) In February 2008, she underwent non-elective surgery which caused her to be absent from work between February 11, 2008 and March 24, 2008. (Cmplt. ¶ 8) Plaintiff alleges that Defendants failed to inform her that she qualified for leave under the FMLA, failed to post the required FMLA notices at her place of work, as mandated by 29 U.S.C. § 2619(a),*fn1 and failed to provide her with a manual setting forth her rights under the FMLA, as required by 29 C.F.R. §§ 825.20 and § 825.301(a)(2). (Cmplt. ¶¶ 10-13)
After Plaintiff returned to work in March 2008, she experienced a variety of allegedly retaliatory acts. A supervisor reviewed her classroom performance soon after her return, and Plaintiff's performance was found unsatisfactory for the first time in her teaching career. (Cmplt. ¶¶ 14-15) The Complaint further alleges that "[t]hereafter, and continuously, her personnel file was constantly lettered" and "[h]er end of year observation was unsatisfactory." (Cmplt. ¶ 17) Plaintiff claims that after her return from surgery "and until the present, the defendant Sara Scrogin has been continuously subjecting the Plaintiff to unwarranted discipline, criticism, threats, and humiliation in the presence of other staff members." (Cmplt. ¶ 18)
I. MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT
Under the Federal Rules of Civil Procedure, leave to amend should be "freely give[n] . . . [when] justice so requires." Fed. R. Civ. P. 15(a)(2). District courts "ha[ve] broad discretion to decide whether to grant leave to amend." Joblove v. Barr Labs. Inc. (In re Tamoxifen Citrate Antitrust Litig.), 429 F.3d 370, 404 (2d Cir. 2005). Although leave to amend should be liberally granted, it may properly be denied in cases of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc." Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2007)(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). "[W]here the plaintiff is unable to demonstrate that [s]he would be able to amend [her] complaint in a manner which would survive dismissal, opportunity to replead is rightfully denied." Hayden v. County of Nassau, 180 F.3d 42, 53 (2d Cir. 1999).
B. Plaintiff's Proposed Disability Claim Against DOE is Barred by Her Failure to File a Notice of Claim
Defendant DOE argues that leave to amend should be denied as to DOE because amendment would be futile. According to DOE, Plaintiff's disability discrimination claim is barred by her failure to file a notice of claim as required by Education Law § 3813(1). (Def. Br. 2) It is undisputed that Plaintiff never filed a notice of claim concerning the disability discrimination she now alleges.
Section 3813(1) of the Education Law provides: No action or special proceeding, for any cause whatever . . . shall be prosecuted or maintained against any school district, board of education, [or] board of cooperative education services . . . or any officer of a school district, board of education . . . unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action . . . is founded was presented to the governing body of said district . . . within three months after the accrual of such claim, and that the . . . body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment.
State notice of claim requirements and statutes of limitations are substantive law that must be applied by federal courts in deciding pendent state and local law claims. See Felder v. Casey, 487 U.S. 131, 151 (1988); Promisel v. First American Artificial Flowers, 943 F.2d 251 (2d Cir. 1991). "If a state would not recognize a plaintiff's right to bring a state claim in state court, a federal court exercising pendent jurisdiction, standing in the shoes of a state court, must follow the state's ...