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Osby v. City of New York

United States District Court, S.D. New York

August 19, 2014

Tammy Osby, Plaintiff,
v.
City of New York, Defendant.

OPINION

THOMAS P. GRIESA, District Judge.

Plaintiff Tammy Osby, proceeding pro se, is a probation officer for the New York City Department of Probation ("DOP") and brings this employment discrimination action against the City of New York. Plaintiff alleges that she was discriminated against on the basis of her race, gender, age, and disability.

Defendant moves to dismiss the complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. The motion is granted.

Complaint

Plaintiff has filed a complaint that is based upon the form-document provided by the Clerk's office, "Complaint for Employment Discrimination." This form complaint provides a plaintiff with boxes to check in order to set forth a claim of employment discrimination. Plaintiff has also attached to her complaint, and included by reference, the record of her 2012 charge of employment discrimination with the Equal Employment Opportunity Commission ("EEOC"). This record includes the following documents: the EEOC "Charge of Discrimination, " the Exhibits to the EEOC Charge of Discrimination, and the EEOC "Dismissal and Notice of Rights" form. Together, the form complaint as well as the record of plaintiff's 2012 EEOC charge constitute plaintiff's complaint.

In the form complaint, plaintiff has checked boxes asserting the following claims of employment discrimination: (1) Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. § 2000e, et seq. (2) the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., and (3) the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12112, et seq. Additionally, using the appropriate boxes on the form, plaintiff alleges that defendant discriminated against her based upon her race ("African-American"), gender ("female"), age (DOB: 10-18-1961), and disability ("knee problems").

Along these lines, plaintiff has checked the following boxes to detail the following discriminatory conduct by defendant: "failure to promote me, " "unequal terms and conditions of my employment, " and "retaliation." Plaintiff alleges that the discrimination began in 2007 and continues to the present day.

To summarize, plaintiff alleges that she has been discriminated against on the basis of her race, gender, age, and disability.

Plaintiff has incorporated by reference the facts set forth in her 2012 EEOC charge. Thus, in considering all of the documents that make up plaintiff's complaint, the court understands the following allegations to be the basis of plaintiff's complaint.

In September 2011, plaintiff began experiencing knee pain as a result of a torn ligament from a previous on-the-job injury. The injury made it difficult for plaintiff to walk or stand for long periods of time and also for plaintiff to complete her field work. On February 27, 2012, plaintiff began weekly sessions with an orthopedic doctor to relieve her knee pain. Plaintiff requested a reasonable accommodation for her injury-specifically, one-hour per week of sick leave to attend these treatment sessions. Plaintiff's supervisors granted the request. After plaintiff had already taken her permitted leave, she was asked for additional medical documentation to continue her weekly sessions. On June 28, 2012, plaintiff underwent knee surgery.

Around this time, plaintiff, concerned that her pay had been incorrectly docketed, began to investigate her time and leave information. In May 2012, DOP informed plaintiff that an audit of her time and leave record had been conducted from 2008 until the present, and that plaintiff had been overpaid by eleven hours and fifty-six minutes. Plaintiff subsequently requested that an outside source conduct a six-month audit to determine why her time and leave had been "changed without her knowledge." On May 31, 2012, DOP denied this request and deducted plaintiff's salary in accordance with its audit.

In September 2012, plaintiff appeared in front of the DOP "gun committee" to request the return of her weapon. Plaintiff had surrendered her weapon to the DOP in 2007, following an incident with a fellow officer. The committee did not return plaintiff's weapon to her.

2012 EEOC Charge

On December 31, 2012, plaintiff filed a charge of discrimination with the EEOC. This was not plaintiff's first charge of discrimination with the EEOC. In February 2011, plaintiff had filed a complaint with the EEOC alleging employment ...


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