Rogers v. Wilkie

          MEMORANDUM OF DECISION RE: DEFENDANT'S MOTION TO DISMISS (ECF NO. 20)

          KARI A. DOOLEY UNITED STATES DISTRICT JUDGE

         Preliminary Statement of the Case

         The Plaintiff, proceeding pro se, brings this employment discrimination action against her former employer, Defendant Robert Wilkie, Secretary of Veterans Affairs. Proceeding under the Americans with Disability Act of 1990^[1] (the “ADA”) and the Rehabilitation Act of 1973, as Amended (Rehab Act), the Plaintiff alleges, inter alia, that the Defendant failed to make accommodations for her disability. On August 23, 2018, the Defendant moved for dismissal of the Complaint on two grounds: (1) that the Plaintiff failed to timely exhaust administrative remedies; and (2) that the Complaint fails to state a claim for which relief may be granted. (ECF No. 20.) The Plaintiff filed an objection on August 30, 2018, contending that she timely exhausted her administrative remedies. (ECF No. 22.) The Defendant replied on August 31, 2018.^[2] (ECF No. 23.) For the reasons that follow, the Court declines to consider the question of whether the Plaintiff exhausted her administrative remedies in a timely fashion under Federal Rule of Civil Procedure Rule 12(b)(6). The motion to dismiss on the latter ground is, however, GRANTED without prejudice. The Plaintiff is afforded until March 11, 2019 to file an Amended Complaint.

         Standard of Review

         When considering a motion to dismiss under Rule 12(b)(6), the Court must “draw all reasonable inferences in Plaintiff's favor, assume all well-pleaded factual allegations to be true, and determine whether they plausibly give rise to an entitlement to relief.” Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” (internal quotation marks omitted)). A plaintiff is entitled to relief if she alleges “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (“While Twombly does not require heightened fact pleading of specifics, it does require enough facts to nudge plaintiff's claims across the line from conceivable to plausible.” (internal quotation marks omitted) (citing Twombly, 550 U.S. at 570)).

         “[C]ourts must construe pro se pleadings broadly, and interpret them to raise the strongest arguments that they suggest.” Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (internal quotation marks omitted) (citing Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996)). “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.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (internal citation and quotation marks omitted); cf. Fed. R. Civ. P. 8(e) (“Pleadings must be construed as to do justice.”). To survive a Rule 12(b)(6) motion to dismiss, however, a pro se plaintiff's factual allegations must be at least “enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.

         That said, the Court is not bound to accept “conclusory allegations or legal conclusions masquerading as factual conclusions.” Rolon v. Henneman, 517 F.3d 140, 149 (2d Cir. 2008) (internal quotation marks omitted); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (“[A]lthough a court must accept as true all of the allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” (internal quotation marks omitted) (quoting Iqbal, 556 U.S. at 678)). Moreover, “[w]here a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

         Factual Allegations

         The Plaintiff pleads the following in her Complaint:^[3]

Employer denied request for an accommodation. I was paid annual leave and sick leave when I was not separated from service, no longer listed as a federal employee per the national helpdesk. I was subjected to false statements and misrepresentations on my CA-7 claim form and also subjected to harassment including hostile, offensive remarks by supervisor. ESO compliant (sic) denied. I suffered retaliation, harassment and discrimination.

(ECF No. 1 at 3). The Plaintiff brings one cause of action, alleging that “My rights for accommodation for my disability was denied per Americans with Disabilities Act 19B.”^[4] (Id.) In support of this count, she pleads the following:

My disability is approved work related injury as of 9-14-2014. Jamie Stratton workers compensation specialist manage (sic) my claim January, 2014 to July, 2014, very knowledgeable of request accommodation. Kris Azy my supervisor knowledgeable of request accommodation, correspondence with Jamie Stratton OWCP specialist about my claim, December 2015, July 22, 2016. Lizzie McAdam, MA, MS, RDT therapist, is my therapist who I see on a weekly basis December 30, 2015 to present. DR. Lubin - psychiatrist - January 2016 to present date. DR. Syed psychiatrist who diagnosed me with post Traumatic stress Disorder May, 2011. Merrill Shrayer co worker.

(Id.) ...