United States District Court, W.D. New York
For Theresa Wilson-Richardson, Plaintiff: Michael Cobbs, LEAD ATTORNEY, Brown & Hutchinson, Rochester, NY.
For Regional Transit Service, Inc., Deborah Griffith, Defendants: Daniel J. Moore, Joshua D. Steele, Roy R. Galewski, LEAD ATTORNEYS, Harris Beach LLP, Pittsford, NY.
For Elaine Tunaitis, Defendant: Daniel J. Moore, Roy R. Galewski, LEAD ATTORNEYS, Harris Beach LLP, Pittsford, NY.
DECISION AND ORDER
DAVID G. LARIMER, United States District Judge.
Plaintiff Theresa Wilson-Richardson (" plaintiff" ) brings this action alleging that her former employer, Regional Transit Service, Inc. (" RTS" ), RTS Chief Administrative Officer Deborah Griffith (" Griffith" ), and RTS employee Dr. Elaine Tunaitis (" Tunaitis" ), discriminated against heron the basis of disability in violation of the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12101 et seq. and the New York Human Rights Law, N.Y. Exec. Law § 290 et seq. (" NYHRL" ), discriminated against her on the basis of race, color and sex in violation of Title VII of the Civil Rights Act of 1964 (" Title VII" ), 42 U.S.C. § 2000e et seq. and the NYHRL, and subjected her to unlawful retaliation in violation of the ADA, Title VII and the NYHRL.
Defendants RTS and Griffith now move for partial dismissal of the complaint pursuant to Fed. R. Civ. Proc. 12(b)(1) and (b)(6), on the grounds that plaintiff's complaint fails to state a cause of action for retaliation or for race or gender-based discrimination, in that it attempts to assert claims beyond the scope of her underlying July 2, 2007 administrative charge, or over which the Court lacks subject matter jurisdiction. Defendant Tunaitis moves to dismiss the claims against her as failing to state a claim. Plaintiff has cross moved to amend the complaint to " amplify and clarify" some of her claims. For the reasons that follow, defendants' motions for dismissal of plaintiff's claims of race and gender-based discrimination, and retaliation, (Dkt. #6) and dismissal of her claims against Tunaitis (Dkt. #16) are granted, and plaintiff's cross motion to amend the complaint (Dkt. #22) is denied.
On or about July 2, 2007, plaintiff filed a discrimination complaint against RTS and several of its employees (including Griffith, but not Tunaitis) with the New York State Division of Human Rights (" NYSDHR" ). The complaint was dual-filed with the Equal Employment Opportunity Commission (" EEOC" ). Plaintiff, a bus driver for RTS, alleged that RTS had discriminated against her on the basis of disability by failing to provide her with a bus that she could operate without straining her right leg to reach the foot pedals. (Dkt. #16-1 at Exh. A). The NYSDHR investigated plaintiff's complaint, and issued final and supplemental determinations on December 20 and 21,2007. Both determinations concluded that plaintiff had established probable cause to believe that RTS had in engaged in a discriminatory practice.
Rather than proceed to the next step of the NYSDHR process, a public hearing, plaintiff requested that the NYSDHR dismiss her complaint on the grounds of ...