The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge:
Plaintiff's original Complaint asserts claims for age discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and deprivation of his constitutional rights as secured by the Fourteenth Amendment in violation of 42 U.S.C. § 1983. DE 1. Plaintiff also sets forth a "constructive discharge" theory of liability. See id. On April 29, 2011, Judge Wexler issued an Order denying Defendants' motion to dismiss Plaintiff's Title VII retaliation claims and granting Defendants' motion to dismiss Plaintiff's Section 1983 claims arising out of alleged age discrimination in violation of the Fourteenth Amendment on the grounds that such claims are precluded by the prior decision of the New York State Division of Human Rights ("DHR"). See DE 17. Initially, Judge Wexler reserved his ruling on Defendants' motion to dismiss Plaintiff's constructive discharge claim on the grounds that Plaintiff failed to exhaust his administrative remedies pending further briefing. Ultimately, the Judge denied the motion. See DE 29.
The only claim asserted against individual Defendant John Williams was for his alleged unlawful termination in violation of Plaintiff's constitutional rights under § 1983. Cmpl. ¶ 35. Since that cause of action was dismissed, the claims remaining are Plaintiff's age discrimination and retaliation claims against Defendant Suffolk County Community College ("SCCC").*fn1
Pursuant to leave granted by Judge Wexler, Plaintiff filed a motion to amend his Complaint to add specific reference to the Age Discrimination in Employment Act ("ADEA") in connection with these claims. See DE 24-3, Ex. 4. For the reasons set forth more fully below, the motion to amend is GRANTED.
Plaintiff was employed as a Campus Security Guard (I) with SCCC from 1987 until he retired in May 2008.*fn2 Plaintiff alleges that in or around 2002, when John Williams became his supervisor, Plaintiff began to experience discrimination due to his age. Plaintiff claims that he was passed over for a promotion to the position of Campus Security Guard (II) in favor of a younger, less qualified candidate and that he was denied personal and leave time routinely granted to younger employees.
In 2005, Plaintiff filed a complaint of discrimination with the New York State Division of Human Rights ("DHR"). After filing that complaint, Plaintiff alleges that the discrimination continued and that he was subjected to further discrimination in retaliation for filing the DHR complaint. Specifically, Plaintiff alleges that he was denied overtime opportunities afforded to younger, similarly situated employees and was also denied uniforms, supplies, safety equipment, and training that younger, similarly situated employees received. Plaintiff filed another complaint with the DHR in 2007 after which he alleges the discrimination continued. According to the Plaintiff, in retaliation for now filing a second DHR complaint, Defendant Williams issued Plaintiff a reprimand in May 2008 for an incident that occurred a year earlier. Specifically, the reprimand was based on Plaintiff's calling in sick during a mandatory overtime shift in May 2007. Plaintiff made the call so that he could attend to a family illness. Concluding that the reprimand was initiated a year late primarily in retaliation for his second DHR complaint, the Plaintiff further alleges that younger, similarly situated employees did not receive reprimands for similar conduct. After receiving the reprimand, Plaintiff claims he retired out of fear that he would lose his job.
Rule 15(a) of the Federal Rules of Civil Procedure provides that in cases where a party cannot amend as a matter of course, "a party may amend its pleading only with the opposing party's written consent or the court's leave." See Fed. R. Civ. P. 15(a); see also Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). A court "should freely give leave when justice so requires" and such leave is in the court's discretion. See Fed. R. Civ. P. 15(a); Grace v. Rosenstock, 228 F.3d 40, 56 (2d Cir. 2000).
Notwithstanding the foregoing principle, leave to amend may be denied where there is "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc." Williams v. Citigroup Inc., __ F.3d __, No. 10-533, 2011 WL 3506099, at *4-5 (2d Cir. 2011) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962)); SCS Commc'n, Inc. v. Herrick Co., Inc., 360 F.3d 329, 345 (2d Cir. 2004) (under Rule 15(a), "leave to amend a pleading may only be given when factors such as undue delay or undue prejudice to the opposing party are absent") (emphasis in original). The party opposing the motion for leave to amend has the burden of establishing that an amendment would be prejudicial." Fariello v. Campbell, 860 F. Supp. 54, 70 (E.D.N.Y. 1994); see also European Cmty. v. RJR Nabisco, Inc., 150 F. Supp. 2d 456, 502-03 (E.D.N.Y. 2001); Saxholm AS v. Dynal, Inc., 938 F. Supp. 120, 123 (E.D.N.Y. 1996). The opposing party likewise bears the burden of establishing that an amendment would be futile. See Blaskiewicz v. County of Suffolk, 29 F. Supp. 2d 134, 137-8 (E.D.N.Y. 1998) (citing Harrison v. NBD Inc., 990 F. Supp. 179, 185 (E.D.N.Y. 1998)).
Although Plaintiff seeks leave to amend his Complaint to add an ADEA cause of action, his position is that the original Complaint sufficiently pleads an ADEA claim despite not specifically referencing it. Nevertheless, Plaintiff contends that leave to amend should be granted because: 1) there has been no undue delay in seeking amendment; 2) there has been no repeated failure to cure deficiencies in previously allowed amendments; 3) Defendant will not be prejudiced by the amendment; and 4) the amendment is not futile. DE 24-2. Defendant contends that Plaintiff's motion to amend should be denied because ...