The opinion of the court was delivered by: David N. Hurd United States District Judge
MEMORANDUM--DECISION and ORDER
Plaintiff John J. Hamzik ("plaintiff" or "Hamzik") initiated this action on January 20, 2011. On March 17, 2011, he filed an amended complaint against defendants Office for People with Developmental Disabilities ("OPWDD"); Broome Developmental Center ("BDC")*fn1 ; Coleen Fadden, Director of Personnel at BDC ("Fadden"); Richard E. Lee, Jr., Assistant Director of Personnel at BDC ("Lee"); Sonya Robinson, Personnel Administrator at BDC ("Robinson"); David Hall, Assistant Worker's Compensation Administrator at BDC ("Hall"); Mark Salko, Developmental Aide III at BDC ("Salko"); Jeff Kelsey, Developmental Aide II at Glenwood House ("Kelsey"); and James Drankowski, Developmental Aide I ("Drankowski") (collectively "defendants").
Plaintiff brings numerous causes of action alleging violations of federal and state law.*fn2
Specifically, plaintiff brings equal protection, due process, and retaliation claims pursuant to 42 U.S.C. § 1983; discrimination claims pursuant to 42 U.S.C. § 2000e ("Title VII"); claims alleging violations of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621--634, and Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101--12300*fn3 ; and pendent state law claims. Plaintiff seeks declaratory, injunctive, and monetary relief.
On May 9, 2011, defendants filed a motion to dismiss the amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and/or 12(b)(6) ("Rule ___"). Plaintiff responded to this motion, and defendants replied.*fn4 On October 25, 2011, Hamzik filed a cross-motion seeking leave to file a second amended complaint pursuant to Rule 15(a)(2). This motion has also been fully briefed. The motions were considered on submit.
The following pertinent facts, taken from the proposed second amended complaint and documents incorporated by reference therein, are accepted as true for purposes of the motion to dismiss. BDC is operated by the state of New York, through OPWDD, and is comprised of several residential units located in Binghamton, New York. The individually named defendants are all employees at BDC. Plaintiff, a white male in his mid-fifties, began working as a part-time developmental aide at BDC on June 8, 2006.
In December 2009 Robinson offered Hamzik a transfer from his part-time position at Glenwood House to a full-time position in the 5A Unit with a start date of January 14, 2010. Hamzik accepted. The following day Robinson advised plaintiff that his start date had been moved to January 28, 2010, in order to allow Anita Elbrecht ("Elbrecht"), a female part-time developmental aide with less seniority than Hamzik, to start a full-time position in the 5A Unit on January 14, 2010. Plaintiff filed a grievance pursuant to the applicable collective bargaining agreement. With the assistance of a union representative, an agreement was reached through which Hamzik would either be transferred to the full-time position before Elbrecht or they would be transferred on the same date.
Nonetheless, Elbrecht was transferred one week ahead of Hamzik at the direction of Fadden, Lee, and Robinson. This transfer took place while plaintiff was on vacation. Plaintiff began working full-time in the 5A Unit on January 28, 2010. Lee refused to adjust plaintiff's personnel file to reflect an earlier starting date and similarly denied his request for compensation for the full-time pay he missed as a result of the belated transfer. Plaintiff subsequently filed another grievance regarding this alleged loss of seniority status.
On January 30 and 31, 2010, plaintiff suffered injuries to his back while working in the 5A Unit. On February 2, 2010, he approached Kelsey, the House Director at Glenwood House, and asked to be reassigned to that facility. Plaintiff desired a transfer back to Glenwood House because such an assignment was less physically demanding on his back and arthritic knee. Kelsey advised that plaintiff's former position had already been filled by David Knebis ("Knebis"), a developmental aide who is significantly younger than plaintiff and had less seniority at BDC. Kelsey had not posted this vacancy in accordance with the collective bargaining agreement and told plaintiff that he "can give it to whom I want!" Proposed Second Am. Compl., ¶ 57. Plaintiff then complained to Robinson, who advised that in order to return to his former position, or any other position at BDC, he must bid on it when it is posted as available.
On February 12, 2010, plaintiff filed a grievance alleging Kelsey had "illegally gifted" his former position to Knebis. Id. ¶ 131. Four days later Kelsey "attempted to intimidate and harass the Plaintiff" by calling him twice and threatening to write him up for insubordination.
Id. ¶¶ 133--37. Plaintiff immediately reported these threats to Lee as well as to a union representative and the grievance chairman, Michael Stroeman. Plaintiff never heard from Kelsey again. Also on February 16, 2010, plaintiff received a phone call from Drankowski, who claimed that Hamzik's grievance against Kelsey caused BDC to rescind an offer of full-time employment to his girlfriend, Tammy Mitchell ("Tammy"). Kelsey had reportedly falsified personnel documents to help Tammy obtain a full-time position and, due to plaintiff's grievance, Tammy's appointment was now being investigated along with other appointments made by Kelsey.
Also in early 2010, Lee, Hall, and Salko granted a three-month extension of "light duty" to Kristen Mitchell ("Kristen")-a female developmental aide in her twenties-after she experienced complications during her pregnancy. Id. ¶ 102. However, defendants refused to provide plaintiff, who was temporarily disabled at the time, with any more than sixty days of light duty.
On June 10, 2010, plaintiff transferred to the Prospect 2 House, where he agreed to work for a binding period of six months. On that same day, defendants posted five vacant positions at the Glenwood House. Fadden refused to permit plaintiff to bid on any of these positions as he was "locked-in" to his assignment at the Prospect 2 House. Id. ¶ 18. At the same time, however, Fadden allowed a younger African-American developmental aide, Matthew Darden ("Darden"), to bid on one of the open Glenwood House positions even though he was "locked into" a similar six-month assignment. Id. ¶ 20. Darden had also been "gifted" a full-time position in the 4E Unit by Salko without bidding on the position as is required by the collective bargaining agreement. Id. ¶ 79.
On July 4, 2010,*fn5 plaintiff sustained a work-related injury to his left knee and received worker's compensation for approximately six weeks. As a result of this injury, Hamzik again requested a transfer to Glenwood House. Fadden denied this request and again refused to allow plaintiff out of his six-month commitment at Prospect 2 House. Although not specifically stated in his complaint, plaintiff apparently remains employed at the BDC.
Plaintiff filed one formal charge with the Equal Employment Opportunity Commission ("EEOC") during the relevant time period. On April 6, 2010, he filed a charge alleging gender discrimination in violation of Title VII. See Fadden Aff., May 9, 2011, Ex. G, 17.*fn6 Plaintiff specifically complained of the incident involving his and Elbrecht's transfers in January 2010 and only checked the box for "sex" discrimination. Id. On May 26, 2010, plaintiff sent a letter to EEOC investigator Maureen Kielt ("Kielt") asserting that arbitration would be futile and "enclosing additional claims" against defendants that had not been included in the EEOC charge. Proposed Second Am. Compl., Ex. 1, 2. The letter outlined only one additional claim; to wit, the alleged gender discrimination related to the preferential treatment afforded to Kristen.
On August 8, 2010, Lee sent Kielt a written response to plaintiff's EEOC charge. This letter only addressed the claim, outlined in the EEOC charge, alleging gender discrimination and loss of seniority status related to Elbrecht's transfer. See Proposed Second Am. Compl., Ex. 7, 36. On September 14, 2010, Hamzik sent another letter to Kielt in which he wrote: "I have noticed that my second set of claims have not been fettered into this inquiry." Proposed Second Am. Compl., Ex. 2, 10. Plaintiff identified his "second set of claims" as those outlined in the May 26, 2010, letter. Id. He then set out a "third set of claims" related to, inter alia, Kelsey's appointment of Knebis to his former position in Glenwood House and Salko's appointment of Darden to a position in the 4E Unit. Id. at 12.
On October 6, 2010, plaintiff sent Kielt another letter in which he referenced a recent "Step-Two grievance hearing" between himself, union representatives, and agents of the state of New York. Proposed Second Am. Compl., Ex. 6, 34. This letter only discussed the claim relating to Elbrecht's transfer to the 5A Unit. Plaintiff was issued a "Notice of the Right to Sue Letter" on October 22, 2010, after the EEOC found no evidence on which to base a gender discrimination claim against defendants. Proposed Second Am. Compl., Ex. 11, 40.
Where a plaintiff seeks to amend his complaint while a motion to dismiss is pending, a court "has a variety of ways in which it may deal with the pending motion to dismiss, from denying the motion as moot to considering the merits of the motion in light of the amended complaint." Roller Bearing Co. of Am., Inc. v. Am. Software, Inc., 570 F. Supp. 2d 376, 384 (D. Conn. 2008). As Hamzik does not seek to add new defendants in the proposed second amended complaint, and since defendants had sufficient opportunity to respond to the proposed second amended complaint, the merits of the motion to dismiss will be considered in light of the proposed second amended complaint.*fn7 Indeed, if the proposed second amended complaint cannot survive the motion to dismiss, then plaintiff's cross-motion to amend will be denied as futile. See Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002).*fn8
Defendants argue that: (1) the complaint fails to comply with the pleading requirements of Rule 8; (2) certain claims for money damages against OPWDD and its employees in their official capacities are barred by the Eleventh Amendment; (3) all claims that were not included in Hamzik's EEOC charge must be dismissed; and (4) the remaining claims fail to state a claim upon which relief may be granted.
A. Motion to Dismiss-Legal Standard
To survive a Rule 12(b)(6) 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 that 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, 556 U.S. 662, 679, 129 S. Ct. 1937, 1950 (2009). Dismissal is appropriate only where plaintiff has failed 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, 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). These pleading requirements apply to pro se plaintiffs as well as plaintiffs represented by counsel. Wynder v. McMahon, 360 F.3d 73, 79 n.11 (2d Cir. 2004). However, particular deference should 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). Finally, a district court may consider ...