
    John Carlo MANIGAULTE, Plaintiff, v. C.W. POST OF LONG ISLAND UNIVERSITY, Defendant.
    No. 08-CV-1853(JS)(WDW).
    United States District Court, E.D. New York.
    Sept. 15, 2009.
    
      John Carlo Manigaulte, Kings Park, NY, pro se.
    Catherine Murphy, Esq., Office General Counsel, Long Island University, Brook-ville, NY, for Defendant.
   MEMORANDUM AND ORDER

SEYBERT, District Judge.

On November 25, 2008, Plaintiff John Carlo Manigaulte (“Plaintiff’) filed a motion to amend his Complaint for the second time. By Order dated March 16, 2009, the Court denied Plaintiffs motion to appoint counsel and referred Plaintiffs motion to amend the Complaint to Magistrate Judge William D. Wall. Judge Wall submitted his Report and Recommendation (“R & R”) on August 17, 2009. For the reasons that follow, the Court ADOPTS the R & R in its entirety. For the reasons that follow, Plaintiffs motion to amend is GRANTED in part and DENIED in part.

BACKGROUND

Plaintiff was employed by Long Island University (“LIU”) as an adjunct professor from September 1999 through September 2006. (Docket Entry (“DE”) 41.) In 2006, Defendant LIU did not renew Plaintiffs appointment, and on November 13, 2006, he filed a complaint with the U.S. Equal Employment Opportunity Commission (“EEOC”) alleging discrimination based on disability. (DE 6 at page 29, DE 41.) On March 10, 2008, the EEOC dismissed the complaint. On May 7, 2008, Plaintiff filed his pro se Complaint in this Court, seeking relief pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1994) (“Title VII”), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101(e) et seq. (“ADA”).

Shortly thereafter, Plaintiff filed motions for appointment of counsel and to proceed in forma pauperis. In an Order dated May 28, 2008, this Court granted Plaintiffs motion for leave to proceed in forma pauperis, denied without prejudice Plaintiffs motion to appoint counsel, dismissed with prejudice Plaintiffs Complaint against the individually named Defendants, and dismissed Plaintiffs Title VII claim against Defendant C.W. Post with leave to amend. On June 30, 2008, Plaintiff filed an Amended Complaint and renewed his request for counsel in his “Amended Motion for Appointment of Counsel.” Subsequently, Plaintiff filed an Amended Complaint and his Amended Motion for Appointment of Counsel. In an Order dated, September 30, 2008 (“September 2008 Order”), the Court found that Plaintiff sufficiently alleged an ADA claim against Defendant C.W. Post and DENIED his motion to appoint counsel.

On November 25, 2008, Plaintiff filed his latest motion to amend. Plaintiff now seeks to further amend his Amended Complaint to include three additional claims: “[ (1) ] that LIU’s required First Year Composition (“FYC”) program openly discriminates against persons with learning disabilities in that two supervisors of the program have refused to even briefly consider the ways in which their “required program” might be modified by them or by others to assist learning-disabled persons, [ (2) ] that when Plaintiff brought to his supervisors’ attention the discriminatory effects of the FYC programs’ pedagogical requirements and classroom practices, they retaliated by terminating the Plaintiffs employment, and [ (3) ] that an employer cannot discharge an employee when such discharge is contrary to a clear mandate of public policy.” (DE 28.) This Court referred the motion to Judge Wall, who later issued an R & R.

As part of the R & R, Judge Wall warned that any objections were to be filed with the Clerk of the Court within ten days of service of the R & R. Within the required time-period, Defendant submitted objections to the R & R. That same day, Plaintiff submitted his “Objections and Consents” to the R & R.

DISCUSSION

I. Standard for Evaluating Reports and Recommendations of Magistrate Judge

‘When evaluating the report and recommendation of a magistrate judge, the district court may adopt those portions of the report to which no objections have been made and which are not facially erroneous.” Walker v. Vaughan, 216 F.Supp.2d 290, 291 (S.D.N.Y.2002) (citation omitted). However, if a party serves and files specific, written objections to a magistrate’s report and recommendation within ten days of receiving the recommended disposition, see Fed. R. Crv. P. 72(b), the district “court may accept, reject, or modify, in whole or in part, the findings and recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b). When a party raises an objection to a magistrate judge’s report, “the court is required to conduct a de novo review of the contested sections.” See Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y.1991). However, “[w]hen a party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error.” Barratt v. Joie, 2002 WL 335014, at *1, 2002 U.S. Dist. LEXIS 3453, at *2 (S.D.N.Y.2002) (citations omitted).

II. Rule 15(a): Leave to Amend

A. Factors to be Considered

As a general matter, courts must “read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments that they suggest.” Corcoran v. New York Power Auth., 202 F.3d 530, 536 (2d Cir.1999) (quotations omitted). Additionally, Rule 15(a) of the Federal Rules of Civil Procedure provides, in pertinent part, that “a party may amend [its] pleading ... by leave of court,” and that “leave shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a). Notwithstanding these liberal standards, the decision to grant or deny a party’s motion for leave to amend “is within the sound discretion of the district court .... ” Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir.1995) (citing John Hancock Mut. Life Ins. Co. v. Amerford Int’l Corp., 22 F.3d 458, 462 (2d Cir.1994)). Under Rule 15(a), a court may deny leave to amend when the non-moving party can show “ ‘undue delay, bad faith, futility of the amendment, and ... prejudice.’ ” Aetna Cas. & Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 603-604 (2d Cir.2005) (quoting Richardson Greenshields Secs., Inc. v. Lau, 825 F.2d 647, 653 n. 6 (2d Cir.1987)). In its opposition of Plaintiffs latest motion, Defendants raise only the factors of prejudice and futility.

B. Demonstrating Futility

To demonstrate that amendment of the Complaint would be futile, the non-moving party must demonstrate that the amended complaint will not sustain a motion to dismiss. Estate of Ratcliffe v. Pradera Realty Co., No. 05-CV-10272, 2007 WL 3084977, at *4 (S.D.N.Y. Oct. 19, 2007); Bender v. Gen. Servs. Admin., No. 05-CV-6459, 2006 WL 1643345, at *1 (S.D.N.Y. Jun. 9, 2006). To withstand a motion to dismiss under Rule 12(b)(6), a complaint must plead facts sufficient “to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). This standard applies to all civil cases: antitrust and discrimination suits alike. Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 1953, 173 L.Ed.2d 868 (2009). The complaint must “raise [the] right to relief above the speculative level,” id. at 1965; thus, courts should preclude those claims that cannot be “nudged ... across the line from conceivable to plausible .... ” Id. at 1974. While the complaint “does not need detailed factual allegations,” the plaintiff must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 1964-65 (citations omitted).

The Second Circuit has construed Twombly to establish “a flexible ‘plausibility standard,’ which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.” Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007) (emphasis in original). However, in applying this standard, the Court must still “accept all of Plaintiffs factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff.” Desiderio v. Nat’l Ass’n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir.1999), cert. denied, 531 U.S. 1069, 121 S.Ct. 756, 148 L.Ed.2d 659 (2001).

III. Review of Judge Wall’s R & R

A. Portions of the R & R that are Uncontested and/or Subject to Conclusory or General Objections

As noted earlier, both Defendant and Plaintiff submitted some form of objection to the R & R. On one hand, Plaintiffs objections are general and conclusory at best. Plaintiffs forty-one page filing is comprised almost entirely of Plaintiffs own views on what the law should be. Similarly, Defendant’s objections to Judge Wall’s finding that Plaintiff need not exhaust his administrative remedies by including this claim in his prior EEOC claim was conclusory. For example, Defendant offers no new case law. These arguments are insufficient to warrant de novo reconsideration of Judge Wall’s R & R. Accordingly, the Court reviews all portions of the R & R, except those dealing with Plaintiffs retaliation claim, for clear error.

After careful review of Judge Wall’s findings and finding no clear error, the Court adopts all portions of the R & R dealing with Plaintiffs first and third proposed claims; specifically the Court DENIES Plaintiffs motion to amend to add claims that LIU’s required FYC program openly discriminates against persons with learning disabilities, and that an employer cannot discharge an employee when such discharge is contrary to a clear mandate of public policy.

B. Defendant’s Objections to the Judge Wall’s Recommendation with Regard to Plaintiff’s Retaliation Claim

On the other hand, Defendant “objects to the analysis and conclusions which were reached in the Report in pages 7 through 10 .... that ... permits the plaintiff to amend the complaint to add a retaliation claim.” (DE 56 at 1-2.) Specifically, Defendant argues that the R & R incorrectly concluded that Plaintiff (1) did not have to exhaust his administrative remedies, (2) has standing to bring a retaliation claim under 42 U.S.C. § 12203, and (3) engaged in a protected activity, and therefore has sufficiently stated a claim under 42 U.S.C. § 12203.

As an initial matter, the Court distinguishes Plaintiffs first and second proposed claims. On one hand, Plaintiffs first proposed claim sought to assert the rights of his allegedly disabled students, and argues that they suffered an adverse action. Plaintiff lacks standing to bring this claim. On the other hand, Plaintiffs second proposed claim seeks to assert Plaintiffs own rights: in other words, Plaintiff argues that because he opposed Defendant’s allegedly illegal treatment of his students, he suffered some adverse action (termination).

The ADA prohibits retaliation by an employer against its employees in relation to a disability discrimination claim by specifically providing that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a). Dismissal of an ADA retaliation claim is not required upon dismissal of an ADA discrimination claim because a successful discrimination claim is not a predicate for a retaliation claim. See Weissman v. Dawn Joy Fashions, Inc., 214 F.3d 224, 234 (2d Cir.2000); Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir.1999).

Ragusa v. Malverne Union Free Sch. Dist., 582 F.Supp.2d 326, 347 (E.D.N.Y. 2008). Thus, even if Plaintiffs discrimination claims are dismissed, it is possible for him to have retaliation claims that survive. Accordingly, the Court finds that Plaintiff has standing to bring his retaliation claim based on alleged retaliation for his reporting of Defendant’s alleged unlawful actions.

In addition to satisfying standing requirements, Plaintiff must demonstrate that he can establish a prima facie case. As Judge Wall states in his R & R, to establish a Title V retaliation claim, Plaintiff must show “that: (1) he engaged in an activity protected by the ADA; (2) the employer was aware of this activity; (3) the employer took adverse employment action against him; and (4) a causal connection exists between the alleged adverse action and the protected activity.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir.2002). Defendant offers the conclusory statement that Plaintiff was not engaged in protected activity. That very well may be; however, the Second Circuit has held that a non-disabled individual who files a complaint of disability discrimination is engaging in activity protected under the ADA “so long as [s]he can establish that [s]he possessed a good faith, reasonable belief that the underlying challenged actions of the employer violated that law.” Ragusa v. Malverne Union Free Sch. Dist., 582 F.Supp.2d 326, 347 (E.D.N.Y. 2008) (alterations in original) (citing Sarno, 183 F.3d at 159). It is not for the Court to determine whether Plaintiff actually reported to his supervisors with the good faith belief that he was opposing illegal activity. Plaintiff has sufficiently pled his element, and that is enough. Felton v. Katonah Lewisboro Sch. Dist., No. 08-CV-9340, 2009 WL 2223853, at *6 (S.D.N.Y. July 27, 2009) (holding that complaints to supervisors are considered protected activity under the ADA). Similarly, Plaintiff has sufficiently established the remaining elements of his claim.

Having determined that amendment of the Complaint would not be futile, the Court would normally consider any prejudice to Defendant. However, in its opposition papers, Defendant does nothing more than to blanketly assert that it would be prejudiced if the Court permits a second amendment of the Complaint. Conclusory assertions are insufficient to satisfy the Defendant’s burden in opposing the motion to amend, and the Court finds that Defendant will not be significantly prejudiced if Plaintiff is permitted to file a Second Amended Complaint.

CONCLUSION

For the foregoing reasons, the Court ADOPTS Judge Wall’s R & R in its entirety. Plaintiffs motion to amend is GRANTED in part and DENIED in part. Plaintiff may proceed with his second proposed claim, namely that when Plaintiff brought to his supervisors’ attention the discriminatory effects of the FYC programs’ pedagogical requirements and classroom ■ practices, Defendant retaliated by terminating the Plaintiffs employment.

The Clerk of the Court is directed mail a copy of this Order to Plaintiff. Plaintiff is directed to file his Second Amended Complaint, bearing the above caption, as a single pleading incorporating his second proposed claim in the Amended Complaint, by October 16, 2009.

SO ORDERED.

REPORT AND RECOMMENDATION

WILLIAM D. WALL, United States Magistrate Judge.

Before the court is plaintiff pro se John Carlo Manigaulte’s motion for leave to file a Second Amended Complaint, see Docket Entry (“DE”) [28], which has been referred to the undersigned for report and recommendation. For the reasons stated herein, it is recommended that plaintiffs motion be granted in part and denied in part.

BACKGROUND

As this case has been the subject of two prior orders regarding the sufficiency of plaintiffs claims, familiarity with the underlying facts of his complaint is assumed. Generally, plaintiff was employed by C.W. Post of Long Island University (“LIU”) as an adjunct professor from September 1999 through September 2006. DE [41]. Plaintiffs appointment was not renewed in 2006, and he subsequently filed a complaint with the U.S. Equal Employment Opportunity Commission (“EEOC”) on November 13, 2006 alleging discrimination based on disability. DE [6] at page 29, DE [41].

Plaintiff filed a complaint on May 7, 2008 seeking relief pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”). Docket Entry (“DE”) [1], Plaintiff filed motions for leave to proceed in forma pauperis and for appointment of counsel. DE [2], [3]. In a Memorandum and Order dated May 28, 2008, District Judge Seybert granted Plaintiffs motion to proceed in forma pauperis, denied without prejudice Plaintiffs motion to appoint counsel, and sua sponte dismissed plaintiffs Title VII claim against defendant LIU, as well as his claims against the individually named defendants. See M & O of 5/28/08, DE [5]. While dismissal of the claims against the individually named defendants was with prejudice, plaintiff was given leave to amend his Title VII claims against LIU. Id.

On June 30, 2008, Plaintiff filed an Amended Complaint. DE [6]. In a Memorandum and Order dated September 30, 2008, Judge Seybert found that plaintiff sufficiently alleged an ADA claim against defendant LIU, but dismissed his Title VII claims with prejudice. M & O of 9/30/08, DE [16],

On November 25, 2008, Plaintiff filed a motion to amend his Complaint for the second time. Plaintiff now seeks to further amend his Amended Complaint to include three additional claims: “(a) that LIU’s required First Year Composition (“FYC”) program openly discriminates against persons with learning disabilities in that two supervisors of the program have refused to even briefly consider the ways in which their “required program” might be modified by them or by others to assist learning-disabled persons, (b) that when Plaintiff brought to his supervisors’ attention the discriminatory effects of the FYC programs’ pedagogical requirements and classroom practices, they retaliated by terminating the Plaintiffs employment, and (c) that an employer cannot discharge an employee when such discharge is contrary to a clear mandate of public policy.” DE [28]. In an Order dated March 16, 2009, the Court referred Plaintiffs motion to amend to the undersigned to report and recommend whether the motion should be granted. DE [40].

DISCUSSION

Rule 15(a) of the Federal Rules of Civil Procedure provides, in pertinent part, that “a party may amend [its] pleading ... by leave of court,” and that “leave shall be freely given when justice so requires.” Fed.R.Civ.P. 15(a); see also Pangburn v. Culbertson, 200 F.3d 65, 70 (2d Cir.1999) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)). In making its determination, the court considers factors such as undue delay, prejudice to the defendants, and futility of the proposed amendments. See Foman, 371 U.S. at 182, 83 S.Ct. 227; MacDraw, Inc. v. CIT Group Equip. Fin., Inc., 157 F.3d 956, 962 (2d Cir.1998); Harrison v. NBD, Inc., 990 F.Supp. 179, 185 (E.D.N.Y.1998). Although amendments are generally favored because “they tend to facilitate a proper decision on the merits,” Blaskiewicz v. County of Suffolk, 29 F.Supp.2d 134, 137 (E.D.N.Y.1998) (citation omitted), ultimately, “it is -within the sound discretion of the court whether to grant leave to amend.” John Hancock Mut. Life Ins. Co. v. Amerford, Int’l Corp., 22 F.3d 458, 462 (2d Cir.1994) (citing Foman, 371 U.S. at 182, 83 S.Ct. 227).

It is well settled that pleadings submitted by pro se plaintiffs may be held to “less stringent standards than [those applicable to] formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972). The court must “read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments that they suggest.” Corcoran v. New York Power Auth., 202 F.3d 530, 536 (2d Cir.1999) (quotations omitted).

The party opposing an amendment has the burden of proving that leave to amend would be futile or prejudicial. See Blaskiewicz, 29 F.Supp.2d at 137-38; Harrison, 990 F.Supp. at 185. “In making this determination, the court should not consider the merits of a claim or defense on a motion to amend unless the amendment is ‘clearly frivolous or legally insufficient on its face.’ ” Blaskiewicz, 29 F.Supp.2d at 138 (quoting Northbrook Nat’l Ins. Co. v. J & R Vending Corp., 167 F.R.D. 643, 647 (E.D.N.Y.1996)). Where leave to amend is opposed on the grounds of futility, “the appropriate legal standard is whether the proposed amended complaint fails to state a claim, under Rule 12(b)(6) of the Federal Rules of Civil Procedure.” Estate of Ratcliffe v. Pradera Realty Co., 2007 WL 3084977, at *4 (E.D.N.Y. Oct. 19, 2007). “On a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, the court must accept the factual allegations as true.” Id. at *5 (citation omitted). Plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “ ‘If the [movant] has at least colorable grounds for relief, justice ... require[s]’ that the court grant leave to amend .a complaint.” Blaskiewicz, 29 F.Supp.2d at 138 (quoting Golden Trade, S.r.L. v. Jordache, 143 F.R.D. 504, 506 (S.D.N.Y.1992) (additional citations omitted)).

Defendant opposes the motion on the grounds of both futility and prejudice. Many of the arguments raised by defendant address the validity of any claim plaintiff may have under the ADA, including that previously allowed by Judge Seybert. The referral here does not encompass a review of the claim previously allowed, and the court will not consider arguments made against that claim. As to the proposed amendments, defendant argues that plaintiff fails to state a cause of action and that the retaliation claim was not raised in plaintiffs EEOC complaint and. thus cannot be made here.

In his prior pleadings, plaintiff has alleged that he is disabled, and that defendant violated the ADA by discriminating against him because of his disability. This current pleading, however, shifts the focus to defendant’s treatment of learning disabled students, expanding on an argument made briefly by plaintiff in his Amended Complaint. See, e.g., Am. Compl. at 33 (referencing discussions with supervisors regarding “their ‘one-size-fits-all’ strategy even though it might adversely impact disabled persons (e.g., students as well as instructors!)” (emphasis in original)).

Proposed Claim 1

Plaintiff seeks to add a cause of action “that LIU’s required First Year Composition (“FYC”) program openly discriminates against persons with learning disabilities in that two supervisors of the program have refused to even briefly consider the ways in which their ‘required program’ might be modified by them or by others to assist learning-disabled persons Plaintiff claims that the ‘process model of writing’ discriminates against learning disabled students.” DE [28]. The undersigned recommends that plaintiffs motion to add this purported cause of action be denied.

At the outset, the court notes that plaintiff has not alleged sufficient facts to invoke the jurisdiction of the federal courts. Federal courts are confined “to adjudicating actual ‘cases’ and ‘controversies.’ ” Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984). To invoke the judicial power of the federal court, plaintiff must satisfy three elements: “[fjirst, the plaintiff must have suffered an ‘injury in fact’-an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical. Second, the injury and the ‘conduct complained of must be causally related; that is, the injury has to be ‘fairly ... trace[able] to the challenged action of the defendant, and not ... the result [of] the independent action of some third party not before the court.’ ” L.A.M. Recovery, Inc. v. Department of Consumer Affairs, 377 F.Supp.2d 429, 437 (S.D.N.Y.2005) (internal quotation marks and citation omitted), aff'd, 184 Fed.Appx. 85 (2d Cir.2006). In his current submission, plaintiff fails to allege any concrete and particularized injury in fact, and any harm he alleges is both conjectural and hypothetical. Thus the undersigned finds that plaintiff has not properly invoked this court’s jurisdiction.

Even if plaintiff were able to provide facts demonstrating some concrete injury, his proposed cause of action would still fail. Reading this claim liberally, it appears that plaintiff is asserting a claim of discrimination by defendant against defendant’s learning disabled students pursuant to Title III of the ADA. Simply put, plaintiff does not have standing to bring a claim on behalf of learning disabled students. See, e.g., Adams v. Tennessee, 70 Fed.Appx. 795, 796 (6th Cir.2003) (therapist lacked “standing to assert the rights of individuals covered by the ADA”). There is a “general prohibition on a litigant’s raising another person’s legal rights.” Allen, 468 U.S. at 751, 104 S.Ct. 3315. Plaintiff has not “identified any obstacle preventing individuals with disabilities from asserting claims on their own behalf, nor has he shown any special relationship with those rights he seeks to assert.” Adams, 70 Fed.Appx. at 796 (citing Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 623 n. 3, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989)). As plaintiff does not have standing to bring a claim under Title III of the ADA on behalf of learning disabled students, an amendment allowing such a cause of action would be futile.

To the extent plaintiff may be asserting an “associational discrimination claim” under the ADA, that attempt also falls short. Under Title I of the ADA, an employee may not be discriminated against by his employer “because of the known disability of an individual with whom the [employee] is known to have a relationship or association.” 42 U.S.C. § 12112(b)(4). Amending plaintiffs complaint to add a Title I claim alleging associational discrimination would be futile “because Title I of the ADA does not allow relief for a teacher alleging an adverse employment action resulting from ‘advocacy’ on behalf of his disabled students.” Valenti v. Massapequa Union Free Sch. Dist., 2006 WL 2570871, at *14 (E.D.N.Y. Sept. 5, 2006).

Proposed Claim 2:

In his second proposed cause of action, plaintiff claims “that when Plaintiff brought to his supervisors’ attention the discriminatory effects of the FYC programs’ pedagogical requirements and classroom practices, they retaliated by terminating the Plaintiffs employment.” DE [28]. Plaintiff does not, however, indicate what law defendant may have violated by its alleged retaliatory conduct.

Plaintiff has not alleged that defendant, a private university, is a state actor for the purposes of a First Amendment claim under 42 U.S.C. § 1983. Even if he had made allegations that defendant is a state actor, a First Amendment retaliation claim would not be viable since plaintiff did not speak “as a citizen on a matter of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 418, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006). It is clear that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Id. at 421, 126 S.Ct. 1951. Specifically, teachers who complain to their superiors on behalf of students are speaking in their official duties as educators and the complaints are not protected speech. See Woodlock v. Orange Ulster B.O.C.E.S., 281 Fed.Appx. 66, 68 (2d Cir.2008); Felton v. Katonah Lewisboro Sch. Dist., 2009 WL 2223853, at *6 (S.D.N.Y. July 27, 2009); Rodriguez v. International Leadership Charter Sch., 2009 WL 860622, at *3 (S.D.N.Y. Mar. 30, 2009).

The court will next address whether plaintiffs proposed amendment states a cause of action for retaliation under Title V the ADA, which prohibits discrimination against any individual “because such individual has opposed any act or practice made unlawful by this chapter ...” 42 U.S.C. § 12203(a). Reading the proposed cause of action liberally, plaintiff is claiming that he was retaliated against after he complained to his superiors on behalf of learning disabled students at the university. The court must first determine whether plaintiff was required to raise this issue in his EEOC complaint.

A. Administrative Exhaustion

Defendant argues that plaintiffs claim of retaliation is barred for failure to exhaust administrative remedies since he did not present the claim in his complaint to the EEOC. “Whether an ADA claim must first be presented to an administrative agency depends on which precise title of the ADA the claim invokes.” McInerney v. Rensselaer Polytechnic Inst., 505 F.3d 135, 138 (2d Cir. 2007). A claim pursuant to Title I, which prohibits employment discrimination, requires the claimant to file a charge with the EEOC, while a claim pursuant to Title III, which prohibits discrimination in the full and equal enjoyment of services, facilities, privileges, or accommodations of any place of public accommodation, does not require administrative exhaustion. Id. Here, plaintiffs proposed claim arises under Title V of the ADA. “Title V retaliation claims in the employment context require the same procedures as those under Title I, while retaliation claims relating to public accommodations follow Title III. Thus, if Title III does not require administrative exhaustion, Title V claims predicated on asserting one’s rights under Title III require no exhaustion either.” Id. (internal citation omitted). Thus, the key issue is whether plaintiffs Title V claim is predicated on Title I or Title III of the ADA.

Here, plaintiff claims that he objected to acts of the defendant that allegedly discriminated against learning disabled students in violation of Title III of the ADA, and that defendant retaliated against him because he raised those objections. Accordingly, the procedures established for Title III violations should be applied as plaintiff claims to have suffered retaliation for objecting to acts or practices which violate Title III. See Cable v. Department of Dev'l Serv., 973 F.Supp. 937, 940 (C.D.Cal.1997) (Title II case). As the Cable court noted, the legislative history of the ADA supports this view, as the House of Representatives Committee Report stated that § 12203(c) of Title V “provides the same remedies and procedures for victims of retaliation and coercion as in the underlying title. For example, an individual who was retaliated against in an employment discrimination complaint would have the same remedies and procedures available under [Title I] as an individual alleging employment discrimination.” H.R.Rep. No. 101-485, pt. III, at 72 (1990), reprinted in 1990 U.S.C.C.A.N. 445, 495.

As plaintiff claims that he was retaliated against for objecting to defendants’ alleged failure to provide learning disabled students with equal access to services, his Title V claim invokes Title III of the ADA. Since a Title III claim does not require administrative exhaustion, his failure to raise the claim in his EEOC complaint does not bar amendment here.

B. Viability of an ADA Retaliation Claim

To establish a Title V retaliation claim, plaintiff must show “that: (1) he engaged in an activity protected by the ADA; (2) the employer was aware of this activity; (3) the employer took adverse employment action against him; and (4) a causal connection exists between the alleged adverse action and the protected activity.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir.2002). “Plaintiff need not be disabled within the meaning of the ADA to proceed on a theory of retaliation for engaging in protected activity under the ADA.” Ditullio v. Village of Massena, 81 F.Supp.2d 397, 408 (N.D.N.Y. 2000) (citing Muller v. Costello, 187 F.3d 298, 311 (2d Cir.1999)); see also Barber v. Saint Gobain Performance Plastics Corp., 2006 WL 2662853, at *6 (D.Vt. Sept. 14, 2006) (plaintiff does not have to prove he is a “ ‘qualified individual with a disability’ in order to succeed with a retaliation claim under the ADA”).

The court finds that plaintiff has adequately pled this cause of action. Regarding the first element of a Title V retaliation claim, complaints to supervisors are considered protected activity under the ADA. See Felton, 2009 WL 2223853, at *6. “[T]he Second Circuit has held that a non-disabled individual who files a complaint of disability discrimination is engaging in activity protected under the ADA so long as [s]he can establish that [s]he possessed a good faith, reasonable belief that the underlying challenged actions of the employer” violated the ADA. Ragusa v. Malverne Union Free Sch. Dist., 582 F.Supp.2d 326, 347 (E.D.N.Y.2008) (quoting Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d Cir.1999)). To the extent plaintiff complained that the defendant was discriminating against its learning disabled students, he engaged in protected activity under the ADA.

As to the second and third required elements, plaintiff has alleged both that his employer was aware of his protected activity, and that he was not reappointed to his position. Failure to re-appoint plaintiff as an adjunct professor may be considered an adverse employment action. See generally Arrocha v. City Univ. of NY, 2004 WL 594981, at *4 (E.D.N.Y. Feb. 9, 2004). Although the alleged causal connection between the protected activity and defendant’s decision to not reappoint plaintiff to his position may be tenuous at best, it is at least plausible, thus rendering the proposed cause of action sufficiently pled for this motion. Accordingly, the undersigned recommends that plaintiff be allowed to amend his complaint to add a retaliation claim under Title V of the ADA.

Proposed Claim 3:

Plaintiffs third proposed claim is that “an employer cannot discharge an employee when such discharge is contrary to a clear mandate of public policy.” Plaintiff has not articulated any federal law supporting a cause of action for wrongful discharge in violation of public policy. The court looks to the law of the state in which the action arose, New York, to see if plaintiff has stated a viable claim under that state’s laws.

Under New York law, “an employment relationship is presumed to be a hiring at will, terminable at any time by either party.” Baron v. Port Auth. of N.Y. & NJ, 271 F.3d 81, 85 (2d Cir.2001) (quoting Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 333, 514 N.Y.S.2d 209, 506 N.E.2d 919 (1987)). Here, plaintiff has not alleged any facts to suggest that he was not an employee at will. See generally Reddington v. Staten Island Univ. Hosp., 511 F.3d 126, 137-38 (2d Cir.2007). It is clear that “New York law does not recognize causes of action for wrongful termination for employees at will.” Howard v. Klynveld Peat Marwick Goerdeler, 173 F.3d 844, 1999 WL 265022 (2d Cir.1999); see also Rohlehr v. Brookdale Univ. Hosp. & Med. Ctr., 390 F.Supp.2d 207, 211 (E.D.N.Y.2005) (“New York does not recognize a common law cause of action for abusive discharge” (citation omitted)). Nor does New York law provide “an exception based on the general notion of public policy.” Rohlehr, 390 F.Supp.2d at 211 (citation omitted). The undersigned finds that plaintiff has not articulated a viable cause of action for wrongful termination in violation of public policy, and recommends that the motion to amend to include such a claim be denied.

The court has also considered whether plaintiff has stated a cause of action under New York’s whistleblower statute and has determined that no such claim exists. Under New York Labor Law § 740, an employer may not retaliate against an employee who reports a violation that “creates and presents a substantial and specific danger to the public health or safety” or “objects to, or refuses to participate in any such activity, policy or practice in violation of a law, rule or regulation.” N.Y. Labor Law § 740(a), (c). The law is triggered only by a violation that creates a substantial and specific danger to the public health. See Rohlehr, 390 F.Supp.2d at 210 (citing Remba v. Federation Employment & Guidance Serv., 76 N.Y.2d 801, 559 N.Y.S.2d 961, 559 N.E.2d 655 (1990)). Taking plaintiff’s allegations as true, his concerns about the impact of the university’s “pedagogical requirements and classroom practices” on learning disabled students do not implicate public health and safety concerns and thus, he cannot state a cause of action under Labor Law § 740.

CONCLUSION

For the reasons set forth above, it is recommended that plaintiffs motion to amend to add the first and third proposed causes of action be denied. It is further recommended that his motion to amend to add the second cause of action be granted as a claim for retaliation under Title V of the ADA.

OBJECTIONS

A copy of this Report and Recommendation is being sent by mail to plaintiff and by electronic filing to counsel for the defendant on the date below. Any objections to this Report and Recommendation must be filed with the Clerk of the Court within 10 days. See 28 U.S.C. § 636(b)(1); Fed. R.Civ.P. 72; Fed.R.Civ.P. 6(a) and 6(d). Failure to file objections within this period waives the right to appeal the District Court’s Order. See Ferrer v. Woliver, 2008 WL 4951035, at *2 (2d Cir. Nov. 20, 2008); Beverly v. Walker, 118 F.3d 900, 902 (2d Cir.1997); Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir.1996).

Dated: Central Islip, New York.

August 17, 2009. 
      
      . Three weeks after Judge Wall issued the R & R, Plaintiff submitted another letter to the Court, received September 11, 2009, which could be interpreted as further objections to the R & R. Even if the Court ignored the tardiness of Plaintiff's last submission and construed it liberally, the objections contained therein are conclusory and unhelpful. Thus, the Court will only consider the parties’ objections filed within the proscribed ten-day period.
     
      
      . Notwithstanding the basis for Defendant's opposition, this Court has examined the record thus far, and bad faith and undue delay are not seriously at issue. Additionally, the Court need not consider prejudice to the Defendant where Plaintiffs amendment would be futile. Therefore, prejudice to LIU is only discussed where Plaintiff's amendment would not be futile.
     
      
      . Plaintiff presents his proposed additional claims by themselves, not as a single pleading incorporating his claims in the Amended Complaint. Given that plaintiff is acting pro se, the court will treat these proposed causes of actions as additions to the Amended Complaint, not a replacement of that pleading.
     
      
      . Plaintiff is advised, however, that should Judge Seybert adopt this Report and Recommendation and allow this claim to move forward, plaintiff will not be allowed to seek discovery regarding learning disabled students at the university as such discovery will not be relevant to his claim that defendant retaliated against him for his complaints.
     
      
      . To the extent this proposed amendment can be read to re-state a cause of action under the ADA, it is unnecessary since his Title I claim under the ADA survived the previous motions to dismiss.
     