The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge
Joe Ann McCray ("McCray") filed this employment discrimination action, prose, on April 14, 2010, against her former employer, Allied Barton Security Services ("Allied Barton")*fn1 and the City University of New York ("CUNY") pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12112-17; the New York State Human Rights Law ("NYHRL"), N.Y. Exec. Law § 290 et seq.; and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.
After the Court referred the general pretrial and dispositive motions in the case to Magistrate Judge Debra C. Freeman by Order dated April 22, 2010, CUNY moved to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6) on the grounds that the Eleventh Amendment grants it sovereign immunity and that, since it was not McCray's employer, McCray cannot state a claim against it for employment discrimination. (See Memorandum of Law in Support of Defendant CUNY's Motion to Dismiss the Complaint ("Def. Mem.").) On January 3, 2011, Magistrate Judge Freeman issued a Report and Recommendation ("R&R"), recommending that the Court grant the motion. The Court has reviewed the R&R and McCray's objections filed on February 17, 2011. For the reasons that follow, the Court adopts Magistrate Judge Freeman's findings and recommendations and dismisses the Complaint with leave to amend.
In August of 2007, Allied Barton hired McCray, who is black, as a security officer and assigned her to a post at the City College of New York ("CCNY"), a part of CUNY. Plaintiff asserts that on or about November 30, 2007, she learned that Jenny Castilla, a female officer who worked with her at the time, had made false statements about her to a third officer. On December 24, 2007, McCray confronted Officer Castilla about her false statements, and an altercation between them ensued. Shortly thereafter, Allied Barton transferred McCray from CCNY to work an outdoor post at a different job site.*fn3 McCray informed her supervisor and Allied Barton's Human Resources District Manager that she was unable to work outdoors because of a disability, and requested that she be provided with a reasonable accommodation. Plaintiff alleges that, in response to her request for reasonable accommodation, she was terminated. (See Complaint at 2; Letter to the Court from Plaintiff, dated Nov. 4, 2010 ("Pl.Opp.") ¶ 2.)
McCray's Complaint alleges that CUNY violated the ADA by failing to accommodate her disability, and violated NYHRL by terminating her employment on the basis of her race and national origin. (See Complaint at 1.) While her Complaint did not explicitly allege any claim of discrimination under Title VII, McCray included such a claim in her EEOC charge, filed on July 31, 2008. (See Declaration of Neil Shevlin, Exhibit B.) Furthermore, in a letter to the court dated October 13, 2010, McCray stated her claim of "race discrimination under Title VII of the Civil Rights Act of 1964," and requested consideration of her case and remuneration for pain and suffering. (See Pl. Opp.)
On August 23, 2010, CUNY moved to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). On January 3, 2011, Magistrate Judge Debra Freeman issued her R&R, recommending dismissal with prejudice of the ADA and NYHRL claims, but affording thirty days to replead her Title VII claim. (See Report and Recommendation ("R&R") at 1-2.) Specifically, Magistrate Judge Freeman concluded that the Eleventh Amendment provided CUNY with immunity from McCray's ADA and NYHRL claims. (See id. at 5-6.) To the extent that McCray asserted a Title VII claim, Magistrate Judge Freeman found that the Eleventh Amendment did not shield CUNY from suit because Congress had abrogated state immunity with respect to such claims. While McCray did not allege sufficient facts to state a Title VII claim, Magistrate Judge Freeman recommended granting her thirty days to replead this claim, (1) to make explicit that she is asserting a claim under Title VII, if she wishes to do so; and (2) to allege facts sufficient to support a claim that CUNY exercised sufficient control over the terms and conditions of McCray's work to be considered her employer at the time of the allegedly discriminatory acts. (See R&R at 7-9.)
On February 15, 2011, the Court received a single-page document from McCray. While the document is untitled, the Court treats it as a timely Objection from the Plaintiff.*fn4 In this document, McCray alleges that: (1) she was hired by Allied Barton Security in August of 2007 as a security officer; (2) she was assigned to work at CCNY, a part of CUNY; (3) after she got into an altercation with Officer Castillo, CCNY launched an investigation into the matter, a disciplinary suit followed and Castillo' shifts were changed; (4) on December 28, 2007, McCray asked for a transfer to another work site; (5) after placing her request, she was transferred to an outdoor post, where she was unable to work because of her disability; and (6) after filing a written complaint to Allied Barton's Human Resources director, McCray's employment was terminated. (See Pl. Obj. ¶ 1.)
McCray alleges that CUNY was her employer. While CUNY was not the direct employer of the security officers, CUNY "set the guidelines of the type of officers that are needed in their facility." (See Pl. Obj. ¶ 2.) She continues that, "[i]n contracting Allied Barton as their security agency, CUNY indeed controlled some aspects of the employee-employer relationship[,] including the number of officers needed, the amount of hours needed for each shift, [the] need for tracking employment records and [for] handling disputes." (Pl. Obj. ¶ 2.) McCray also alleges that in their contractual agreement with Allied Barton, CUNY "can refuse employment of any security guard, or request officers with certain types of ...