United States District Court, N.D. New York
Carole Anne Smith, Pro Se, Lake Placid, NY, for the Plaintiff.
HON. RICHARD S. HARTUNIAN, United States Attorney, KAREN FOLSTER LESPERANCE, Assistant U.S. Attorney, Albany, NY, for the defendants.
MEMORANDUM-DECISION AND ORDER
GARY L. SHARPE, Chief District Judge.
Plaintiff pro se Carole Anne Smith commenced this action against defendants United States Department of Homeland Security (Transportation Security Administration (TSA)) and Janet Napolitano, Secretary, alleging, among other claims, violations of the Americans with Disabilities Act (ADA). ( See generally Am. Compl., Dkt. No. 11 at 1-6.) Given Smith's pro se status, the court liberally construes her amended complaint as also asserting a claim under the Rehabilitation Act,  despite her inartful pleading. Pending is defendants' pre-answer motion for partial dismissal of Smith's amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. No. 22.) For the reasons that follow, defendants' motion is granted.
In 2008 and 2009, Smith worked at the Albany International Airport, screening passengers and baggage at security checkpoints. (Am. Compl. ¶¶ 10, 13, 19-20.) During this time, Smith was "constantly harassed and actually threatened" by two coworkers who created a "very hostile and scary work environment." (Id. ¶ 26.a, c.) Some of this harassment was due to her religious beliefs as a Wiccan. (Id. ¶¶ 14, 16.) Further, in June 2009, Smith claims that she was the victim of disability discrimination after she suffered an ankle injury at work. (Id. ¶¶ 24-25.) On September 10, 2009, Smith filed charges with the Equal Employment Opportunity Commission, which found that Smith failed to prove that she was subjected to discrimination as alleged and issued Smith a right-to-sue letter on April 20, 2012. (Id. ¶¶ 27-28; Dkt. No. 11 at 7-11.)
B. Procedural History
Smith commenced this action on July 9, 2012. ( See generally Compl., Dkt. No. 1.) On November 13, 2012, upon an initial review pursuant to 28 U.S.C. § 1915(e)(2), Magistrate Judge Therèse Wiley Dancks recommended that Smith's complaint be dismissed with leave to amend her Title VII and ADA claims if she could, in good faith, allege that she had exhausted her administrative remedies and been issued a right-to-sue letter. (Dkt. No. 5.) The court adopted Judge Dancks' Order and Report-Recommendation, and granted Smith leave to amend her complaint. (Dkt. No. 9.) Consistent with the court's order, Smith filed an amended complaint on March 1, 2013 alleging claims pursuant to Title VII and the ADA. ( See generally Am. Compl.) Defendants filed the now-pending motion, seeking dismissal of Smith's ADA claim, and, to the extent that the court may be inclined to interpret Smith's ADA claim as a claim under the Rehabilitation Act, dismissal of that claim as well. ( See generally Dkt. No. 22.)
III. Standard of Review
The standard of review under Fed.R.Civ.P. 12(b)(6) is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its prior opinion in Ellis v. Cohen & Slamowitz, LLP, 701 F.Supp.2d 215, 218 (N.D.N.Y. 2010).
A. ADA ...