United States District Court, D. Connecticut
MEMORANDUM OF DECISION RE: DEFENDANT'S MOTION TO
DISMISS (ECF NO. 20)
A. DOOLEY UNITED STATES DISTRICT JUDGE
Statement of the Case
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 (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. (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
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)).
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.
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).
Plaintiff pleads the following in her
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.” (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.