The opinion of the court was delivered by: John G. Koeltl, District Judge:
MEMORANDUM OPINION AND ORDER
This is an action by the pro se plaintiff Juana Morales ("Morales") against her former employer, the defendant the New York City Department of Juvenile Justice ("DJJ"). Morales alleges discrimination and retaliation against her by the DJJ on the basis of race, gender, color, national origin, age and disability status, in violation of Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. § 2000 et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the Americans with Disabilities Act, 42 U.S.C. § 12112 et seq., the Equal Pay Act, 29 U.S.C. § 201 et seq., the Health Insurance Portability and Accountability Act ("HIPAA"), 29 U.S.C. § 1182, and the New York State Human Rights Law ("NYSHRL") and New York City Human Rights Law ("NYCHRL"). The DJJ now moves to dismiss the complaint pursuant to Rule 12 of the Federal Rules of Civil Procedure.
The following facts are undisputed unless otherwise noted:
The plaintiff alleges that she was hired as a Special Officer by the DJJ*fn1 in August 2005, and was assigned to work at the Crossroads Detention Center. (Third Am. Compl. ("TAC"), at 4.) She alleges that, when she worked overtime shifts, she was assigned to work with Senior Special Officer Sgt. Cynthia Mickens-Hines. (TAC, at 4.)
The plaintiff alleges that, in January, 2006, Mickens-Hines asked her to falsify an incident report in order to protect Mickens-Hines' husband from a disciplinary infraction, but the plaintiff refused to do so. (TAC, at, 4.) The plaintiff alleges that, in the wake of this refusal, she was treated in a harassing and discriminatory manner by Mickens-Hines and other officers for at least one year. The plaintiff alleges that Mickens-Hines made disparaging remarks to her and treated her in a demeaning manner, and that Mickens-Hines and the DJJ systematically afforded better treatment to African-American officers. The plaintiff alleges that she was forced to work longer hours and to take meals and breaks last, and that she was paid less than her union contract and the City Office of Labor Relations Salary Table required, while African-American officers were paid correctly. (TAC, at 4.) The plaintiff also alleges that she was written up on false or meritless infractions, while African-American officers were not written up for similar or more egregious infractions. (TAC, at 4.) The plaintiff also alleges that Mickens-Hines gave male officers preferential treatment in work assignments and time off. (TAC, at 5.) The plaintiff alleges that these incidents occurred between 2006 and 2008. (TAC, at 4-5.)
The plaintiff alleges that she first complained about Mickens-Hines to her superiors, including Director of Support Services Vick, on August 23, 2006. (TAC, at 4.) The plaintiff met with Director Vick, among others, to discuss her complaint, and Vick represented that he had forwarded the plaintiff's complaint to Equal Employment Opportunity officer Tonya Haynes. (TAC, at 4.) The plaintiff alleges that EEO Officer Haynes asked the plaintiff for more information, and the plaintiff provided a three page summary of the dates and times of incidents of harassment. (TAC, at 4.) In September, 2006, Officer Haynes dismissed the EEO complaint as insufficient. (TAC, at 4.) The plaintiff alleges that no action was taken in response to her complaint, and that the information provided in her complaint was revealed to Mickens-Hines, leading to further harassment. (TAC, at 4-5.) The plaintiff also alleges that, after she filed her complaint, she was sexually harassed by Director Vick, and that, when she reported this harassment to EEO Officer Haynes, Haynes "refused to acknowledge" it. (TAC, at 5.) The plaintiff asserts that Haynes and Vick are both African-American. (TAC, at 5.)
The plaintiff alleges that, in addition to the allegations of harassment already described, and in an attempt to get the plaintiff fired, Mickens-Hines convinced a subordinate officer to file a sexual harassment complaint against the plaintiff in April, 2008. (TAC, at 4-5.) The plaintiff alleges that this complaint was unsubstantiated, and that she and other Hispanic officers were not interviewed in the subsequent investigation by the EEO officer. The plaintiff alleges that this false report was filed by Mickens-Hines in retaliation for the plaintiff's reporting Mickens-Hines' "[c]orruption." (TAC, at 5.)
The plaintiff further alleges that she sustained a knee injury on July 17, 2008. She alleges that, when she attempted to return to work on May 30, 2009, DJJ would not let her do so, claiming that she was not mentally fit to return to duty. (TAC, at 5.) The plaintiff alleges that, in the context of a New York State Department of Human Rights administrative hearing on her complaint of discrimination, she signed a medical release form allowing the City to obtain her mental health records. (TAC, at 5.) The plaintiff alleges that these records were then turned over to an attorney for the DJJ, and that the DJJ then used these records to discriminate against her based on her mental health history and status, and to prevent her from returning to work. (TAC, at 5.) The plaintiff alleges that, when she was finally able to return to work, she was subjected to further harassment. (TAC, at 5.)
The plaintiff filed a discrimination claim against the DJJ with the New York State Department of Human Rights ("NYSDHR") in August, 2007, alleging discrimination on the basis of race and national origin, and also alleging retaliation. (TAC, at 3; see also Pl.'s Mem., Ex. A ("NYSDHR Compl."), at 1-2.) The ALJ in that action dismissed the complaint in April, 2009. (TAC, at 3; see also Carpenter Aff. Ex. B ("NYSDHR Decision"), at 8.) The plaintiff requested a review of her complaint by the Equal Employment Opportunity Commission ("EEOC"), and the EEOC issued the plaintiff a right-to-sue letter in December, 2009. (See TAC, at 7 (Right to Sue Letter).)
The plaintiff filed this lawsuit in February, 2010.*fn2
Her Amended Complaint was filed in May, 2010, and her Second
Amended Complaint was filed in August, 2010. In July, 2011, the Court
granted the plaintiff's motion for leave to file a Third Amended
Complaint, noting that any successful motion to dismiss the third
amended complaint would be with prejudice. See Memorandum Opinion
Dated June 14, 2011, Docket No. 40. The DJJ then moved to dismiss the
Third Amended Complaint pursuant to Rule 12 of the Federal Rules of
In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.2007); Arista Records LLC v. Lime Grp. LLC, 532 F. Supp. 2d 556, 566 (S.D.N.Y.2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id.; see also SEC v. Rorech, 673 F. Supp. 2d 217, 221 (S.D.N.Y. 2009).
When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See ...