The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM-DECISION and ORDER
Plaintiff Cynthia Graham ("plaintiff" or "Graham"), proceeding pro se, commenced this action on June 28, 2010, pursuant to 42 U.S.C. § 1983. In her amended complaint*fn1 plaintiff asserts ten federal causes of action for, inter alia, discrimination and retaliation in violation of the Fourteenth Amendment, the Age Discrimination in Employment Act ("ADEA"), the Americans With Disabilities Act ("ADA"), and the Rehabilitation Act.*fn2 Plaintiff also brings four pendent state law claims and seeks declaratory, monetary, and injunctive relief. On December 9, 2010, defendants moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Plaintiff opposes the motion, which was taken on submit.
The following facts, taken from plaintiff's 89-page amended complaint, are accepted as true for purposes of this motion.
Graham taught music in the Watertown City School District (the "District") for 40 years, during which she received satisfactory evaluations and earned tenure. Due to injuries sustained while working in the District in 1998 and 2002, plaintiff suffers from chronic pain and limited mobility in her neck, right shoulder, and right arm. This condition was determined to be a permanent disability by the Workers' Compensation Board and is exacerbated by cold and damp weather, lifting, and overuse. In 1998 plaintiff requested, and was granted, accommodating schedule changes and a single-building teaching assignment at the Ohio Elementary School ("Ohio").*fn3 Due to building renovations during the 2006--2007 school year, however, Graham had to travel between Ohio and another school to teach on a daily basis.
This constant travel aggravated her physical ailments and prevented her from taking needed rest breaks during the day.
In early July 2007 Graham sent a written request through her attorney, accompanied by a letter from her doctor, asking to be assigned to a single school in the upcoming 2007--2008 school year as an accommodation for her physical disability. Instead, defendant Superintendent Fralick ("Fralick") assigned plaintiff to again teach classes in two different buildings. Further, plaintiff was scheduled two more hours of teaching per day than other District music teachers, some of whom had unassigned teaching time during the day.*fn4
On August 22, 2007, plaintiff phoned the president of the Board of Education (the "Board"), Peter Monaco ("Monaco"), who called her a "troublemaker" and accused her of plotting to sue the District. Plaintiff mailed the Board two letters in response to Monaco's comments. In one letter plaintiff requested to have her teaching assignment switched with one of the music teachers who taught full-time at one building and, therefore, did not travel during the day.
On August 28, 2007, the District's attorney, Frank Miller, sent Graham's attorney a letter in response to her requested accommodation. Miller acknowledged that the District had an obligation to accommodate plaintiff but stated that her request to teach in only one school could not be granted because it would disrupt building assignments on the eve of the start of the school year. Miller noted that plaintiff could limit her classroom movement and "work activities accordingly provided that she is able to meet the requirements of the state syllabus and the school curriculum." Miller further explained that plaintiff could take rest periods as needed, request audio/visual aids, and use reserved parking spaces.
Plaintiff sent another letter to the Board on September 4, 2007. On September 13, 2007, she received a written response from Monaco advising that the District had retained an attorney to determine its legal rights and obligations. This letter was placed in plaintiff's personnel file without her knowledge or signature. In a September 17, 2007, letter to the Board, plaintiff claimed that placing the September 13 letter in her file without her consent was a violation of the teachers' collective bargaining agreement. In response, Fralick agreed to remove the letter from plaintiff's personnel file.
On June 16, 2008, Graham again requested a one-building assignment for the upcoming school year. Fralick granted this request, and plaintiff was assigned to Ohio full-time for the 2008--2009 school year. Additionally, plaintiff was provided with a class schedule that incorporated sufficient rest periods. However, just prior to the inception of the school year, the length of each class at Ohio was extended from 30 minutes to 35 minutes. Graham protested this increase, which stripped her of needed rest periods. Plaintiff's request to have the time restored to 30 minutes was denied at a subsequent meeting, at which other teachers supported the 35-minute class length and openly insulted Graham.
On September 2, 2008, plaintiff sent a letter to Fralick complaining of the meeting. Fralick did not respond. Soon thereafter plaintiff filed a formal grievance complaining of her teaching schedule. In response, Fralick claimed that plaintiff's grievance "reflects considerable selfishness" but approved the resolution proposed by Ohio's principal. The resolution did not address the lack of rest periods, which soon became problematic for plaintiff. On October 27, 2008, Graham submitted a letter to Ohio's principal requesting that music classes return to the 30-minute length. When the principal failed to respond, plaintiff wrote a letter to Fralick. In a written response dated November 24, 2008, Fralick denied plaintiff's request for a schedule change-without consulting her-because there was no "compelling justification" for a change. Graham wrote additional letters to Fralick in January and March of 2009 but received no response. On May 14, 2009, plaintiff sent a letter to the Board complaining of Fralick's treatment and requesting an interactive process to identify and implement reasonable accommodations. Plaintiff never received a response to this letter.
On June 29, 2009, plaintiff served a notice of claim on the Board alleging employment discrimination. Also in June 2009, Graham again asked Fralick for a teaching schedule that incorporated rest periods for the upcoming 2009--2010 school year. However, the Assistant Superintendent for Instruction sent plaintiff a letter in July 2009 assigning her to a two-building schedule due to a decrease in student enrollment.*fn5 Plaintiff immediately mailed letters to Fralick and Monaco opposing this new assignment. Graham did not receive any response to her letters, and her assignment remained unchanged. On September 25, 2009, plaintiff served another notice of claim on the Board.
During the 2009--2010 school year four music teachers received assignments that did not require daily travel between schools, and Fralick granted transfers to other teachers. Moreover, Fralick cut the hours of a part-time music teacher, which necessitated Graham's daily travel to the second school to teach an extra class. On December 28, 2009, plaintiff filed a charge of employment disability discrimination with the Equal Employment Opportunity Commission ("EEOC"). On March 30, 2010, plaintiff was issued a "Right to Sue" letter by the EEOC.
As a result of conversations with District principals in March 2010, Fralick's announced cuts to the music program, and the District's history of failing to accommodate her needs, plaintiff feared that her assignment for the 2010--2011 school year would be physically unmanageable. Fralick also announced incentives for any employee who retired by May 14, 2010. These circumstances effectively left Graham without a choice, and she retired on May 12, 2010.
During these final three school years of her career, Graham was subjected to negative remarks and gossip by school staff concerning her disability and her reserved parking space. Fralick did not schedule any workshops to sensitize staff about the challenges faced by disabled employees. The District did not adopt a nondiscrimination policy for older and/or disabled employees, train its employees about employment discrimination, nor provide procedures for employees to request and implement accommodations. Moreover, the District has a history of discriminating against disabled employees by assigning them to positions and duties without reasonable accommodations.
A. Judgment on the Pleadings-Legal Standard
The standard for granting a 12(c) judgment on the pleadings is "identical" to that of a 12(b)(6) motion to dismiss. Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001).To survive a motion to dismiss, the "[f]actual allegations must be enough to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965 (2007). Although a complaint need only contain "a short and plain statement of the claim showing the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), more than mere conclusions are required. Indeed, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937, 1950 (2009).
Dismissal is appropriate only where plaintiff fails to provide some basis for the allegations that support the elements of her claims. See Twombly, 550 U.S. at 570, 127 S. Ct. at 1974 (requiring "only enough facts to state a claim to relief that is plausible on its face"). When considering a motion to dismiss, the complaint is to be construed liberally, the factual allegations are to be accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). Additionally, particular deference is to be given to a pro selitigant's complaint when applying the above standard. Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200 (2007).
B. Documents Submitted by Defendants
Defendants have attached to their reply paperwork a copy of the September 13, 2007, letter from Monaco and the November 24, 2008, letter from Fralick. Miller Decl., Exs. A & B, Dkt. No. 24. Plaintiff has requested that these documents not be considered. However, "[d]ocuments that are attached to the complaint or incorporated in it by reference are deemed part of the pleading and may be considered." Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007). In her amended complaint plaintiff refers to and quotes from these letters. See Am. Compl., Dkt. No. 10, ¶¶ 23, 31, 141--43, 151, 199j, 199m.
Plaintiff also incorporates the July 5, 2007, letter from her attorney to Fralick (Id. ¶¶ 15, 47e, 54, 57); letters from her doctors (Id. ¶¶ 54, 61h); the August 28, 2007, letter from attorney Miller to her attorney (Id. ¶¶ 62, 62a, 63, 77c, 144); a June 29, 2009, notice of claim she served on the Board (Id. ¶¶ 6--6a, 168, 200q); the District's response to her notice of claim (Id. ¶ 200r); her August 22, 2009, letter to attorney Miller (Id. ¶ 57i); and her September 25, 2009, notice of claim (Id. ¶ 7)-all of which are attached to defendants' motion to dismiss. Miller Decl., Exs. B--I, Dkt. No. 21.
Accordingly, all of these documents are deemed part of the amended complaint and will be considered.
C. Section 1981a Claim-First Cause of Action
Plaintiff's first cause of action alleges a violation of 42 U.S.C. § 1981a(a)(2). However, this statutory section does not provide an independent cause of action. Javier v. Deringer-Ney, Inc., 578 F. Supp. 2d 368, 372 (D. Conn. 2008). Instead, § 1981a(a)(2) enhances the remedies available to prevailing parties in certain actions, including some types of claims under the ADA and Rehabilitation Act. Because at least some of plaintiff's ADA and Rehabilitation Act claims will survive this motion, as detailed below, Graham may recover under this statute if she ultimately prevails on these claims within the meaning of § 1981a(a)(2). However, this claim is not a separate cause of action.
Accordingly, this first cause of action will be dismissed with the understanding that it will be subsumed under the remaining ...