The opinion of the court was delivered by: John T. Curtin United States District Judge
Plaintiff Elizabeth Quattrone filed this action in May 2008 pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; 42 U.S.C. § 1983; and the New York Human Rights Law, N.Y. Exec. Law § 296, seeking money damages and reinstatement to her job with defendant Erie 2-Chautauqua-Cattaraugus Board of Educational Services ("BOCES" or "Erie 2 BOCES"). Also named as defendants are the Chautauqua Lake Central School District and the City of Dunkirk School District, two of the districts serviced by Erie 2 BOCES where plaintiff worked as a tenured elementary education teacher, as well as the individual board members of each of these entities. Pending for the court's determination is plaintiff's motion (Item 37) pursuant to Rule 15(a) of the Federal Rules of Civil Procedure for leave to amend the complaint to assert claims for violation of certain provisions of the New York Education Law and for breach of the collective bargaining agreement between Erie 2 BOCES and Tri-County BOCES Education Association ("TBEA"), plaintiff's union.
For the reasons that follow, plaintiff's motion for leave to amend is granted.
As alleged in the original complaint, BOCES is a statutorily authorized cooperative association designed to provide shared educational services to component school districts within designated geographical areas--here, southern Erie, Cattaraugus, and Chautauqua Counties--referred to as the "supervisory district." See N.Y. Educ. Law § 1950. Plaintiff became certified in 1980 as an elementary education teacher in New York State and was appointed in 1984 to an "unclassified service" position within the Erie 2 BOCES system. In 1990, following a successful probationary period, she was granted tenure in the supervisory district (Item 1, ¶¶ 9-20).
During the 2002-2003 school year plaintiff was assigned by Erie 2 BOCES to teach elementary school students in Dunkirk City and Chautauqua Lake schools. Then, on July 1, 2003, plaintiff was notified by BOCES that she was being "excessed" because her teaching position had been consolidated with other elementary teaching positions within the two districts. She was placed on the preferred eligibility list, which she claims "entitl[ed] her to reinstatement in a similar, vacant position as a tenured elementary education teacher" should one become available. Item 1, ¶ 26 (citing N.Y. Educ. Law ¶¶ 3013(3) and 3014). She was 52 years old at the time she was excessed.
In September 2003, plaintiff commenced an administrative appeal with the New York State Education Department, which was denied by the Commissioner of Education. She sought review in New York State Supreme Court pursuant to C.P.L.R. Article 78, but this petition was dismissed, and the dismissal was affirmed on appeal. See Quattrone v. New York State Educ. Dept., 37 A.D.3d 939, 829 N.Y.S.2d 288 (3d Dept. Feb. 8, 2007).
Plaintiff then brought this action,*fn1 claiming that defendants refused to recognize her statutory right to be recalled to her tenured position when jobs became available for which she was eligible, and hired younger, less qualified teachers to fill those positions, resulting in intentional discrimination with respect to the terms, conditions, and privileges of her employment on the basis of age, in violation of the ADEA and the corresponding provisions of New York State Human Rights Law. She also claims that defendants' refusal to recall her deprived her of a constitutionally protected property interest without due process (see Item 1, ¶¶ 52-53), and (broadly construed) that defendants violated her First Amendment rights by retaliating against her for (1) expressing matters of public concern during her administrative proceeding and Article 78 review (see id. at ¶ 38); (2) participating in union activities related to her claim that BOCES breached the applicable collective bargaining agreement (see id. at ¶¶ 41-42); and (3) refusing to sign a waiver and release of all claims against defendants as a condition precedent to reinstatement (see id. at ¶¶ 43-47), all actionable pursuant to 42 U.S.C. § 1983. The original complaint sets forth twelve separate causes of action seeking various forms of relief, including compensatory, statutory, punitive, and liquidated damages, along with "a mandatory injunction directing defendants to immediately reinstate her tenured employment . . . " and reasonable attorneys fees. Id. at pp. 20-21.
At the conclusion of discovery, the court approved the parties' joint proposal for filing and briefing of dispositive motions (Items 35 & 36). Prior to the agreed upon filing date, however, plaintiff filed the present motion for leave to amend the complaint to plead two additional causes of action, and the court stayed the dispositive motion schedule until the motion to amend could be briefed and decided (Item 40).
In support of her request for leave to amend, plaintiff contends that discovery in the case, including the testimony of union president John LoBianco at his deposition in March 2010, revealed facts pertaining to a series of written agreements entered into between Erie 2 BOCES and Dunkirk to provide a universal pre-kindergarten program (the "UPK Program") which resulted in the creation of new pre-kindergarten teaching positions for which plaintiff was qualified, but which BOCES erroneously posted "outside the TBEA bargaining unit" (Item 44, ¶¶ 3, 4). Plaintiff contends that these previously undisclosed facts give rise to causes of action for (1) violation of New York Education Law Sections 3013 (Abolition of office or position), 3014 (Tenure: boards of cooperative educational services), and 3108 (Payment of salaries; refusal to tender release) (Item 37, Ex. 1, ¶ 95), and (2) breach of the collective bargaining agreement between BOCES and TBEA which was in effect from September 1, 2005 through August 31, 2009 (id. at ¶ 97).
Defendants object to the proposed amendment, claiming that they would be unfairly prejudiced if the court allows plaintiff to assert these additional causes of action at this stage of the litigation, and that in any event granting leave to amend would be futile because plaintiff failed to present her Education Law claims to the Commissioner in a timely manner, and failed to follow the mandatory grievance procedures of the collective bargaining agreement.
I. Fed. R. Civ. P. 15 (a)
Rule 15(a) provides that leave to amend a pleading "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). On the other hand, a motion for leave to amend may be denied "if there is an 'apparent or declared reason--such as undue delay, bad faith or dilatory motive . . . , repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of an amendment, [or] futility of amendment.' " Dluhos v. Floating and Abandoned Vessel Known as "New York", 162 F.3d 63, 69 (2d Cir. 1998) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)); accord Abram v. City of Buffalo, 2008 WL 5191675, at * 5 (W.D.N.Y. Dec. 10, 2008). Defendants assert that plaintiff unduly delayed seeking leave to amend, and that having to prepare for a defense against the newly asserted claims ...