Plaintiff Lynn Rowe ("Plaintiff" or "Rowe") commenced the instant action pursuant to the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., claiming that she was discriminated against on account of her disability and retaliated against for engaging in protected activity. Dkt. No. 1 ("Complaint"). In her initial Complaint, Plaintiff named the New York State Division of the Budget, James Kiyonaga, and Thomas Wood as Defendants. See id. at 1-3. Defendants moved to dismiss the claims against the individuals on the ground that there is no individual liability under the ADA, and to dismiss the claims against the State of New York under the Eleventh Amendment. Dkt. No. 8 ("first Motion to dismiss"). In response to this Motion, Plaintiff filed an Amended Complaint withdrawing the claims against the individual Defendants. Dkt. No. 16 ("Amended Complaint"). Based on the filing of the Amended Complaint, Defendants filed an application to withdraw their first Motion to dismiss, which the Court granted. See Dkt. No. 14. Presently before the Court is: (1) Defendant's renewed Motion to dismiss the Amended Complaint pursuant to Rule 12 of the Federal Rules of Civil Procedure; and (2) Plaintiff's Cross- Motion for leave to file a second amended complaint. Dkt. Nos. 17 ("Motion"), 20 ("Cross-Motion").
The following facts are taken from Plaintiff's Amended Complaint and, for purposes of the instant motion, are assumed to be true.
Plaintiff suffers from peroneal muscular atrophy, type 1A, which is a physical condition that negatively affects her ability to walk and perform other motor skills. Am. Compl. at 2.*fn1
Plaintiff is a New York State employee and works in the Expenditure/Debt Unit of the Division of the Budget. Id. ¶ 1. In April 2007, Plaintiff's prior supervisor, James Kiyonaga, began excluding Plaintiff from almost all meetings, trainings, and seminars. Id. He also made belittling remarks about Plaintiff's hearing. Id. On April 2, 2007, Plaintiff observed Kiyonaga mocking the way she walked. Id. Thereafter, Plaintiff requested a new supervisor, and Defendant investigated the matter. Id. After the investigation, Kiyonaga remained Plaintiff's supervisor, and Plaintiff claims that the discriminatory behaviors and exclusionary practices escalated in retaliation to that internal investigation. Id.
In June 2008, Plaintiff again requested a new supervisor. Id. ¶ 2. However, Kiyonaga remained Plaintiff's supervisor until he left the Division of the Budget on September 17, 2008. Id. At that time, Defendant Thomas Wood became Plaintiff's supervisor. Id.
In October 2008, Plaintiff became aware that she had been passed over for a promotion. Id. ¶ 3. Another employee with a lower score on the civil service exam received the promotion. Id.
Plaintiff requested a meeting with Wood. Id. At the meeting, held on October 29, 2008, Wood told Plaintiff that she did not receive the promotion because of a performance evaluation previously prepared by Kiyonaga, which stated that Plaintiff was not meeting the performance standards of her level (Grade 18 Budget Examiner), or even that of the lower Grade 14 level. Id. This performance review contradicted prior performance reviews completed by Kiyonaga before Plaintiff complained about his discriminatory conduct. Id. In July 2009, Plaintiff requested a copy of the negative performance evaluation. Id. ¶ 5. She was told that it was no longer available. Wood also denied that Kiyonaga influenced the determination concerning the promotion and stated that Plaintiff did not meet the standard for promotion to Grade 23. Id. ¶ 5.
Plaintiff filed a charge of discrimination with the EEOC on August 20, 2009. Id. ¶ 3. On August 31, 2009, Wood advised Plaintiff that he would be providing her with a performance review. Id. ¶ 6. Plaintiff received the review, which had some negative components, on September 23, 2009. Id. Plaintiff filed a second charge of discrimination with the EEOC on July 20, 2010, alleging that the negative September 23, 2009 performance review was in retaliation for engaging in protected conduct. Id. Plaintiff contends that the performance review falsely claimed that Plaintiff lost data and made other improper charges. Id. ¶¶ 6-7.
Plaintiff further alleges that Wood "talks down" to her and excludes her from meetings, trainings and projects in which her co-workers are included. Id. ¶ 8-9. Plaintiff also claims that Wood repeatedly assigned her tasks that were impossible to complete, gave her unreasonably short deadlines, and assigned her to inappropriate tasks, all in retaliation for her protected conduct. Id. ¶¶ 10-13.
On May 13, 2010, Plaintiff was transferred from her position as a Budget Examiner to a Budget Examiner Public Finance position, without her consent or prior knowledge. Id. ¶ 14. Because Plaintiff was transferred out of her original position, she lost her "holds" on that position, which are important to secure a job in the event of layoffs. Id. After learning from the Civil Service department that this action was impermissible, Plaintiff complained to the human resources department and was transferred back into her original title. Id.
Based on the foregoing, Plaintiff commenced the instant action pursuant to the Americans with Disabilities Act claiming that she was discriminated against on account of her disability (failure to promote), excluded from work activities on account of her disability, and retaliated against for engaging in protected activity. Plaintiff seeks injunctive relief directing Defendants to cease all discriminatory and retaliatory behavior; include her in work projects, meetings, and ...