The opinion of the court was delivered by: David G. Larimer United States District Judge
Plaintiff Theresa Amie ("Amie") brings this action against Eric K. Shinseki, Secretary of the Department of Veterans Affairs (the "V.A."), alleging that the V.A. discriminated against her with respect to her employment in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §12201 et seq., and the New York Human Rights Law ("NYHRL"), N.Y. Exec. Law §290. Specifically, plaintiff contends that the V.A. had subjected her to disparate treatment, a hostile work environment, and unlawful termination, all on the basis of her perceived disability.
In lieu of an answer, the V.A. now moves to dismiss the complaint pursuant to Fed. R. Civ. Proc. 12(b)(6), on the grounds that Amie's complaint fails to state a cause of action. (Dkt. #3). Amie has cross moved to amend the complaint (Dkt. #7). For the reasons set forth below, Amie's cross motion to amend is granted, the V.A.'s motion to dismiss is granted, and the amended complaint is dismissed.
In deciding a motion to dismiss under Fed. R. Civ. Proc. 12(b)(6), the Court's review is limited to the complaint, and those documents attached to the complaint or incorporated therein by reference. See Newman & Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir. 1996). The Court must "accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994), citing Ad-Hoc Comm. of the Baruch Black & Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987). Nonetheless, "a plaintiff's obligation . . . requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, "bald assertions and conclusions of law will not suffice," Reddington v. Staten Island Univ. Hosp., 511 F.3d 126, 126 (2d Cir. 2007), and where a plaintiff "ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed." Twombly, 550 U.S. 544 at 570.
I. Amie's Cross Motion to Amend the Complaint
It is well settled that federal employees such as plaintiff have no recourse under the ADA for disability-related discrimination. See e.g., 42 U.S.C. §12111(5)(B)(i) (excluding the United States from the definition of ADA "covered" employers). Rather, a federal employee's exclusive remedy for disability-based employment discrimination is prescribed by the Rehabilitation Act of 1973, 29 U.S.C. §701 et seq. ("Rehabilitation Act"). See Rivera v. Heyman, 157 F.3d 101, 103 (2d Cir. 1998); Chmiel v. Potter, 2010 U.S. Dist. LEXIS 141748 at *13 (W.D.N.Y. 2010).
Amie's initial complaint erroneously listed her claims as arising under the ADA and NYHRL rather than the Rehabilitation Act, and her proposed amended complaint (Dkt. #7-1) simply seeks to correct that error. In general, leave to amend is to be freely granted. See generally Fed. R. Civ. Proc. 15(a). In the interests of justice and in order to facilitate a more orderly and efficient analysis of the V.A.'s motion to dismiss, the grounds for which apply with nearly equal force to plaintiff's claims whether they are viewed as arising under the ADA or the Rehabilitation Act, plaintiff's cross motion to amend (Dkt. #7) is granted, and the Court will proceed to address the V.A.'s motion to dismiss, and plaintiff's arguments in opposition, as they pertain to the amended complaint.
II. Defendant's Motion to Dismiss Amie's Claims As Under the Rehabilitation Act
The amended complaint (Dkt. #7-1) alleges, in summary, that the plaintiff is disabled by virtue of severe hearing loss of which the V.A. was "duly aware," and that as a result, the V.A. unlawfully "regarded" plaintiff as disabled "because of a perception of mental illness based on myth, fear and/or stereotype." Id. at ¶¶12, 14, 15. The facts alleged in support of this conclusion primarily concern the V.A.'s communications with plaintiff, a probationary suicide hotline responder who also volunteered in the V.A.'s Pain Clinic, about whether interns or non-clinicians such as herself were entitled to observe groups within the Pain Clinic, and plaintiff's allegation that she was being "held back" from attempting a doctoral level internship, in that a supervisor warned her to stop making repeated inquiries on the subject because her behavior appeared "pushy." Id. at ¶¶23-31. Plaintiff also makes the somewhat contradictory assertions that she was unfairly denied a transfer to work an evening shift in order to accommodate her daytime coursework, id. at ¶¶32-36, but also that she was primarily scheduled to work "evenings and weekends" in the first instance. Id. at ¶44. Finally, plaintiff contends that on May 9, 2009, without prior notice, her probationary employment as a suicide hotline responder was terminated, and that the reason given by the V.A. -- that plaintiff's supervisors found she had been speaking to distressed veterans in a "disdainful, dismissive and insensitive way" -- is pretextual, because the supervisors were unlikely to have been able to observe plaintiff's interactions with veterans, and if they had, they would have realized that plaintiff's inappropriate behavior was caused by her hearing impairment. Id. at ¶¶41, 42.
A. Discriminatory Discharge
As the parties readily concede, the Rehabilitation Act incorporates the standards of the ADA, as well as the remedies and procedures associated with Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), albeit with the significant distinction that although the ADA makes it unlawful to discriminate against a qualified individual "because of the disability of such individual," the Rehabilitation Act requires that in order to be actionable, the discrimination must have taken place solely due to an individual's disability. Compare 42 U.S.C. §12112(a) with 29 U.S.C. §794(a). See Parker v. Columbia Pictures Indus., 204 F.3d 326, 337 (2d Cir. 2000).
In order to state a claim for disability-related discrimination, a plaintiff must plausibly allege that: (1) her employer is subject to the Rehabilitation Act; (2) she was disabled within the meaning of the Rehabilitation Act; (3) she was otherwise qualified to perform the essential functions of her job, with or without reasonable accommodation; and (4) she suffered adverse employment action ...