The opinion of the court was delivered by: Gary L. Sharpe District Court Judge
MEMORANDUM-DECISION AND ORDER
Pro se plaintiff Margaret Burnett commenced this action against defendants Trinity Institution Homer Perkins Center, Inc., Harris Oberlander, Carol June Washington, and Robert Trimble under Title VII of the Civil Rights Act of 1964*fn1 and the Americans with Disabilities Act (ADA),*fn2 alleging discrimination, wrongful termination, and unlawful retaliation. (See Compl., Dkt. No. 1.) Burnett additionally asserts a discrimination claim based on her alleged whistleblower status and a defamation claim. (See id.) Pending is defendants' motion to dismiss.*fn3
(Dkt. No. 6.) For the reasons that follow, the motion is granted, Burnett's complaint is dismissed, and Burnett is granted limited leave to amend her Title VII and ADA claims against Trinity.
The standard of review under FED. R. CIV. P. 12(b)(6) is well established and will not be repeated here. For a full discussion of the standard the court refers the parties to its decision in Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 217-18 (N.D.N.Y. 2010). In reviewing claims of discrimination or retaliation, "a court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 72 (2d Cir. 2006) (internal quotation marks and citation omitted). A "pro se complaint is to be read liberally, and should not be dismissed without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009) (internal quotation marks, citation, and italics omitted). However, a party may not amend a pleading through statements made or submitted in motion practice. See Wright v. Ernst & Young LLP, 152 F.3d 169, 178 (2d Cir. 1998); see also Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006).
A. Title VII, the ADA, and Individual Liability
As a preliminary matter, the court notes that "individuals are not subject to liability under Title VII." Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (per curiam) (citation omitted). Likewise, there is no right of recovery against individuals under the ADA for claims of wrongful termination and retaliation. See Spiegel v. Schulmann, 604 F.3d 72, 79-80 (2d Cir. 2010); Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Accordingly, Burnett's Title VII and ADA claims against defendants Oberlander, Washington, and Trimble are dismissed. See Patterson v. County of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir. 2004).
Burnett asserts three grounds for Trinity's liability under Title VII based on its alleged discriminatory conduct: (1) termination of employment; (2) unequal terms and conditions of employment; and (3) retaliation. (See Compl. at 2, Dkt. No. 1.) However, neither Burnett's complaint nor the documents submitted in support of her complaint contain any information identifying Burnett as a member of a protected class. (See generally Compl. & Exs. 1-20, Dkt. No. 1.) Thus, Burnett's complaint fails to allege-explicitly or implicitly-that her membership in a protected class was the basis for Trinity's alleged actions or that Trinity acted with a discriminatory animus. Furthermore, there is nothing in Burnett's submissions that suggests she engaged in a protected activity regarding a type of discrimination that Title VII forbids. Accordingly, the court is obligated to dismiss Burnett's Title VII claims against Trinity. Importantly though, the court is equally obligated to afford Burnett an opportunity to amend her complaint to allege facts sufficient to support a claim under Title VII against Trinity.
While Burnett's submissions are silent as to her membership in a class protected by Title VII, her complaint and submissions do allege that while she was on disability leave she suffered an adverse employment action. Specifically, Burnett alleges that after undergoing a hysterectomy on January 30, 2009, she went on short-term disability leave with a return date of April 1, 2009, but was notified by letter dated February 11, 2009, that she was being terminated. (See Compl. at 7-10, Dkt. No. 1; see also Compl. Exs. 2, 9, 13, Dkt. No. 1:1.) However, notwithstanding her pro se status and the ADA's broad coverage, Burnett wholly fails to allege an ADA claim for discrimination or retaliation.
To establish a prima facie case of discrimination under the ADA, a plaintiff must allege, inter alia, that she "is disabled within the meaning of the ADA or perceived to be so by [her] employer." Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 134 (2d Cir. 2008) (citation omitted). The ADA defines "disability" as "a physical or mental impairment that substantially limits one or more major life activities ...; a record of such an impairment; or being regarded as having such an impairment." 42 U.S.C. § 12102(1)(A)-(C). However, a person cannot be "regarded as having ... an impairment" if her impairment is "transitory" such that it has "an actual or expected duration of 6 months or less." Id. § 12102(3)(B); see also Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198 (2002) ("The impairment's impact must also be permanent or long term."), partially superseded by statute, ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553; Jackson v. Nor Loch Manor HCF, 134 F. App'x 477, 477 (2d Cir. 2005) (holding that a surgical procedure requiring a temproary absence from work is "not enough to sustain a claim under the ADA"); Adams v. Citizens Advice Bureau, 187 F.3d 315, 316 (2d Cir. 1999) (per curiam) (holding that, absent an ongoing impairment, an employee is not disabled under the ADA where he was on leave for three months due to an automobile accident); Guary v. Upstate Nat'l Bank, 618 F. Supp. 2d 272, 275 (W.D.N.Y. 2009) (finding no disability where employee suffered a broken ...