The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.
Pro se plaintiff Deborah Hand, formerly employed by the New York City Transit Authority ("NYCTA") as a Console Train Dispatcher until her termination in 1999, filed this action against the NYCTA and the New York City Department of Citywide Administrative Services ("DCAS"), relating to the DCAS's denial of plaintiff's letter application to the DCAS in 2009 for reinstatement to her former position at the NYCTA. Plaintiff alleges unequal terms and conditions of employment, failure to accommodate her disability, retaliatory termination, and discrimination on the basis of disability under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112 et seq. ("ADA"). (Proposed Second Amended Complaint (Doc. No. 12-1) at 1, 3.) Defendant NYCTA seeks to dismiss plaintiff's Second Amended Complaint under Fed. R. Civ. P. 12(b)(1) and (6). Defendant DCAS, added as a party after plaintiff filed her Second Amended Complaint, seeks to file a pre-answer Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b) by letter to the Court dated October 7, 2011. Plaintiff is granted in forma pauperis status for purposes of the present action. For the reasons set forth herein, all claims against both NYCHA and DCAS are dismissed. Plaintiff's motion to seal certain records is granted in part.
Plaintiff worked as a Console Train Dispatcher at the NYCTA. On March 2, 1999, plaintiff refused to either take a breathalyzer test to determine her blood alcohol level or provided a sufficient urine sample after the NYCTA had reasonable suspicion that plaintiff had used or was under the influence of alcohol while at work. (Application for Medical Reinstatement (Doc. No. 12-1) at 7.) The NYCTA brought disciplinary charges and in a decision dated May 14, 1999 by an Administrative Law Judge, plaintiff was found guilty of refusing to submit to the testing after her employer had reasonable suspicion that she was under the influence of alcohol at work. (Id. at 4.) Plaintiff's employment with the NYCTA was terminated effective June 3, 1999. (Id.)
Plaintiff had previously brought an action in this Court challenging her dismissal from the NYCTA as retaliatory termination following her complaints of discrimination, in violation of Title VII, 42 U.S.C. § 1983, and state law. In her Opinion & Order dated September 13, 2004, Judge Feuerstein granted summary judgment to the NYCTA and dismissed plaintiff's complaint in its entirety. See Hand v. New York City Transit Authority, No. 00-CV-1310 (E.D.N.Y. Sept. 13, 2004). In December 2005, the Second Circuit upheld this Court's grant of summary judgment to defendant NYCTA. See Hand v. New York City Transit Authority, 159 Fed. Appx. 282 (2d Cir. 2005).
By letter dated November 5, 2009, plaintiff applied to defendant DCAS for reinstatement to her former position at the NYCTA pursuant to N.Y. Civ. Serv. Law § 73. (See November 10, 2009 Letter Response from DCAS, First Amended Complaint (Doc. No. 5) Attachs. at 6.) The DCAS denied plaintiff's application because "her termination was based on misconduct . . . , and not due to a disability or medical condition." (See id..) On April 6, 2010, plaintiff filed a complaint against the NYCTA with the New York State Division of Human Rights ("State Division"), alleging that the NYCTA discriminated against her on the basis of disability, race, sex, and in retaliation for her complaints. (See August 27, 2010 Determination and Order After Investigation, Declaration of Joyce R. Ellman ("Ellman Decl.") Ex. D (Doc. No. 20-4).) After investigation, the State Division determined that there is no probable cause to believe that the NYCTA had engaged in the unlawful discriminatory practices that plaintiff complained of. (See id. at 1.) On December 2, 2010, the United States Equal Employment Opportunity Commission ("EEOC") adopted the State Division's findings and issued a Right to Sue letter. (First Am. Compl. Attachs. at 2.)
Plaintiff filed her Complaint in the present action on March 1, 2011 and a First Amended Complaint on April 5, 2011, naming the NYCTA as the sole defendant both times. (See Docs. No. 1, 5.) On July 25, 2011, plaintiff requested permission from the Court to amend her Complaint for a second time to include the DCAS as a defendant. (Doc. No. 12.) On August 5, 2011, this Court granted plaintiff leave to do so and on August 15, 2011, plaintiff filed her Second Amended Complaint. (See Doc. No. 14.) However, the Second Amended Complaint filed by plaintiff is not the same as the one proposed in her July 25 request to amend and includes amendments outside the scope of the leave to amend granted by this Court on August 5, 2011.*fn1 (Compare Proposed Second Am. Compl. (Doc. No. 12-1) with Second Am. Compl. (Doc. No. 14).)
The DCAS, added as a defendant after the Court gave plaintiff leave to amend her complaint for the second time, requested a pre-motion conference before the Court by letter dated October 7, 2011 to discuss its intended pre-answer Motion to Dismiss pursuant to Rules 12(b)(4), (5), and (6). (See Doc. No. 26.) Defendant DCAS does not appear to have been properly served in this action as no summons with respect to the DCAS has been issued.
"A document filed pro se is to be liberally construed and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Boykin v. KeyCorp, 521 F.3d 202, 214 (2d Cir. 2008) (internal quotation marks omitted). Accordingly the Court construes plaintiff's Complaint with "special solicitude" and interprets it to raise the strongest arguments it suggests. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (quoting Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994)).
LEGAL STANDARDS GOVERNING MOTIONS TO DISMISS
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).Acomplaint need not contain "'detailed factual allegations,'" but it must contain "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 555). In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). Rather, the plaintiff's complaint must include "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "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." Iqbal, 129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 570). The determination of whether "a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 1950 (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)).
"The standard for a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction is 'substantively identical' to the 12(b)(6) standard, except that the plaintiff has the burden of establishing jurisdiction in a 12(b)(1) motion." S & R Dev. Estates, LLC v. Bass, 588 F. Supp. 2d 452, 460 (S.D.N.Y. 2008); see Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003). "A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed. R. Civ. P. 12(b)(1)); see also Oscar Gruss & Son, Inc. v. Hollander, 337 F.3d 186, 193 (2d Cir. 2003) ("Failure of subject matter jurisdiction, of course, is not waivable and may be raised at any time by a party or by the court sua sponte.") In considering a motion to dismiss for lack of subject matter jurisdiction, a district court "must accept as true all material factual allegations in the complaint, but [is] not to draw inferences from the complaint favorable to plaintiffs." J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004) (citation omitted). This Court, however, "may consider affidavits and other materials beyond the pleadings to ...