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Catharine E. Davis v. Nyc Department of Education

January 18, 2012


The opinion of the court was delivered by: Matsumoto, United States District Judge:


On August 17, 2010, Catharine E. Davis ("plaintiff") commenced this pro se action pursuant to the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12112--12117, alleging discrimination in the terms and conditions of her employment by the New York City Department of Education ("DOE") and Lisa Linder ("Linder"), the principal of Intermediate School ("I.S.") 302 (collectively, "defendants"). Presently before the court is defendants' motion to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). For the reasons set forth below, defendants' motion to dismiss is granted in part and denied in part.


I.Complaint Allegations and Procedural History

The following facts, taken from plaintiff's pro se Complaint and from her Opposition and Sur-Reply to defendants' motion to dismiss, are assumed to be true for the purpose of the instant motion.*fn1 (See generally ECF No. 1, Complaint ("Compl."); ECF No. 20-8, Plaintiff's Affidavit/Affirmation In Opposition to Defendants' Motion, dated 4/11/2011 ("Pl. Opp."); ECF No. 21, Amended Reply to Plaintiff's Initial Opposition to Defendant's Motion to Dismiss, dated 5/9/2011 ("Pl. Sur-Reply.").) Plaintiff worked as a certified health teacher at I.S. 302 from 2002 to 2009. (ECF No. 1, Compl. at 6.)*fn2 Plaintiff alleges that from 2002 through the school year ending in 2007, she received satisfactory performance evaluations. (Id.) For the school years ending in 2008 and 2009, however, plaintiff asserts that the school's principal, Linder, evaluated plaintiff's performance as unsatisfactory. (Id.)

On October 29, 2008, plaintiff was involved in an automobile accident that she alleges left her disabled for three months, until January 31, 2009. (Id.) A disability claim form signed by plaintiff and dated December 8, 2008, states that she was diagnosed with a "c-spine injury, rt. shoulder injury, [and] lumbar back disorder" with symptoms of pain from all three injuries. (ECF No. 20-8, Pl. Opp. at 10.) The date of plaintiff's first treatment for these injuries was October 30, 2008. (Id.) After plaintiff used her last sick day, she was given a "grace period" from November 8, 2008 to December 7, 2008, (see id.), and the DOE granted plaintiff a "leave of absence without pay . . . for restoration of health from 12/8/08 to 1/30/09," (ECF No. 21, Pl. Sur-Reply at 6). During plaintiff's absence, an unlicensed substitute teacher, who plaintiff alleges was a personal friend of Linder's, covered plaintiff's teaching responsibilities. (ECF No. 1, Compl. at 6.)

Plaintiff alleges that while she was on leave, Linder offered to assess plaintiff's annual performance as "satisfactory" as long as plaintiff agreed to give up her job as health teacher and accept a job as chorus teacher, a position for which plaintiff had no license or experience. (See ECF No. 21, Pl. Sur-Reply at 3). Plaintiff contends that this "proposition" was motivated by Linder's desire to give plaintiff's job as health teacher to the substitute teacher, who was Linder's friend. (Id.) Plaintiff asserts that she nevertheless received an unsatisfactory rating because Linder failed to follow through on her "proposition."*fn3 (Id.)

When plaintiff returned to work, the school's Union Chapter Leader informed her that she would have to share her $3,000 year-end cash bonus with the substitute teacher who had covered her teaching responsibilities during her absence. (ECF No. 1, Compl. at 6.) As a result, plaintiff received a bonus of only $1,000. (Id.) Plaintiff alleges that the $3,000 year-end bonus was allotted to her based on her inclusion in the school's Table of Organization as a tenured, state-certified teacher, and the distribution of her bonus to the non-certified substitute teacher was contrary to the terms of the Collective Bargaining Agreement ("CBA") established by the DOE and plaintiff's labor union. (See ECF No. 1, Compl. at 6; ECF No. 20-8, Pl. Opp. at 3-4; ECF No. 21, Pl. Sur-Reply at 2.)*fn4

On June 4, 2010, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging that the DOE and Linder discriminated against her based upon her alleged disability. (See ECF No. 1, Compl. at 4.) On June 24, 2010, the EEOC decided that, based upon its investigation, it was "unable to conclude that the information obtained establishe[d] a violation of the [law]." (Id. at 7.) The EEOC issued plaintiff a "right to sue" letter. (See id.)

On August 17, 2010, plaintiff filed the instant action, alleging that defendants discriminated against her because of her disability, by evaluating her performance as unsatisfactory and by denying her the full amount of her bonus. (See id. at 6.) On August 27, 2010, the court denied plaintiff's motion for leave to proceed in forma pauperis. (ECF No. 3, Order, dated 8/27/2010.) On March 10, 2011, the court denied without prejudice plaintiff's motion to appoint pro bono counsel. (ECF No. 12, Order, dated 3/10/2011.)*fn5

On March 17, 2011, defendants served plaintiff with the instant motion to dismiss. (See ECF No. 20-7, Memorandum of Law In Support of Defendants' Motion to Dismiss the Complaint, dated 3/17/2011 ("Def. Mem.").) Plaintiff opposed the motion on April 11, 2011. (See ECF No. 20-8, Pl. Opp.) Defendants served plaintiff with their reply and filed the fully briefed motion on April 26, 2011. (See ECF No. 20-9, Reply Memorandum of Law In Further Support of Defendants' Motion to Dismiss, dated 4/26/2011 ("Def. First Reply").) Without authority or permission to do so, on May 9, 2011, plaintiff filed an amended reply to plaintiff's initial opposition to defendants' motion to dismiss. (See ECF No. 21, Pl. Sur-Reply.) On May 13, 2011, the court granted defendants leave to respond to plaintiff's additional submission and ordered that no further submissions from any party regarding the instant motion would be permitted.

(See Order re Letter/Amended Reply and Motion for Extension of Time, dated 5/13/2011.) Despite the court's order, however, plaintiff moved for leave to file a third reply to defendants' motion to dismiss. (See ECF No. 25, Letter Motion for Leave to File Plaintiff's Reply to Defendant's Response, dated 5/17/2011.) The court denied plaintiff's request. (See Order Denying Motion for Leave to File, dated 5/24/2011.) Defendants filed their authorized supplemental response on May 18, 2011. (See ECF No. 24, Reply in Opposition to Plaintiff's Amended Opposition, dated 5/18/2011 ("Def. Second Reply").)

Defendants move to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(2)*fn6 and 12(b)(6) on the grounds that (a) the Complaint fails to state a cause of action under the ADA; and (b) Linder is not subject to suit under the ADA. (See ECF No. 20-7, Def. Mem. at 6.)


I.Rule ...

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