Kearney v. City of Bridgeport Police Department

MEMORANDUM OF DECISION ON DEFENDANTS’ MOTION TO DISMISS WARREN W. EGINTON, Senior District Judge. This action arises from plaintiff Verna Kearney’s claims that defendants City of Bridgeport Police Department, Chief Bryan Norwood and Lieutenant David Daniels (1) discriminated against her on the basis of her race, color and gender by subjecting her to a hostile work environment in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”); (2) retaliated against her for opposing discriminatory practices; (3) discriminated against her in violation of the Equal Protection Clause of the Fourteenth Amendment to the federal Constitution; and (4) discriminated against her in violation of the Connecticut Fair Employment Practices Act (“CFE-PA”), Conn. Gen.Stat. § 46a-60(a)(3)(4). Now pending before the Court is defendant’s Motion to Dismiss (Doc; # 28). The Court has jurisdiction over plaintiffs claims pursuant to 28 U.S.C. § 1331 as to plaintiffs federal law claims and pursuant to 28 U.S.C. § 1367 as to plaintiffs state law claim. BACKGROUND For purposes of ruling on a motion to dismiss, the Court accepts all allegations of the complaint as.true. 1 Plaintiff is an African-American female residing in the state of Connecticut. She began working for defendant City of Bridgeport Police Department as a police officer in February 1997 as a routine patrol officer. She also served as an instructor at the Bridgeport Police Academy and as booking officer at the Bridgeport Jail. Defendant Norwood, at all relevant times, was Chief of Police of the City of Bridgeport Police Department. Defendant Daniels was, at all relevant times, plaintiffs immediate supervisor. Defendant Police Department was, at all relevant times, an employer with more than 15 employees. In March 2001, plaintiff was approached by Captain Radzimirski to direct the Seniors’ Program. She was given the title of Director of CARES/TRIAD. Directing the program became a full-time position for plaintiff, and under her leadership, the program grew. During her time as director, plaintiffs performance evaluations were excellent. *568 On or about August 2006, • defendant Daniels informed plaintiff that she would be reassigned to work as a¡ School Resource Officer (“SRO”) three days per week, but that she would remain at the Seniors’ Program for two days per week. Daniels told plaintiff that the reason for this change was that he needed additional resources and was redeploying several officers. Specifically, he needed police officers to do less community work and more traditional police work. In response, plaintiff filed a written discrimination complaint with defendant, alleging that she had been discriminated against based on her race. On September 12, 2006, a group of seniors approached Bridgeport Mayor John Fabrizi to express their disappointment at plaintiffs removal from the program. Mayor Fabrizi indicated that he had confidence in defendant Norwood’s recommendation. In or about August and September 2006, plaintiff learned' that a Hispanic male would be "replacing her. On October 10, 2006, she learned that Officer Nick Ortiz would officially be replacing her and be responsible for the Seniors’ Program. Plaintiff claims that the director of the Seniors’ Program position was more prestigious than that of an SRO. Plaintiff also alleges that she has fulfilled the requirements to be director while Officer Ortiz does not. Plaintiff further contends that she became humiliated with how she was treated by Daniels and his superiors for opposing what she believed was employment discrimination. Further, she argues that Daniels made her work environment hostile.. On October 4, 2006, plaintiff wrote to Daniels and Sergeant Meekins, with copies to Mayor Fabrizi and Norwood, that she believed that she was being discriminated against based on her race, color and gender. On October 11, 2006, Daniels informed plaintiff that she was being transferred back to “Patrol” and removed from her director position. Plaintiff argues that while she served as director, she accrued compensatory time. When Ortiz took over, however, he was paid overtime pay instead of compensatory time. Plaintiff asserts that she has exhausted the requisite administrative remedies prior to filing suit. DISCUSSION The function of a motion to dismiss is “merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof.” Ryder Energy Distribution v. Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.1984). When deciding a motion to dismiss, the court must accept all well-pleaded allegations as true and draw all reasonable inferences in favor of the pleader. Hishon v. King, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). The complaint must contain the grounds upon which the claim rests through factual allegations sufficient “to raise a right to relief above, the speculative level.” Bell Atl. Corp. v. Twombly, — U.S.-,-, 127 S.Ct. 1955, 1965, 167 L.Ed.2d 929 (2007). A plaintiff is obliged 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 (2d Cir.2007) (applying flexible “plausibility standard” to Rule 8 pleading). I. Violation of the Title VII Defendants seek dismissal of count I on the grounds that plaintiff has failed to allege any set of facts that support a claim under Title VII and that plaintiff has failed to describe an adverse employment action. *569 Count I of the complaint alleges that plaintiffs rights under Title VII were violated by the creation of a hostile work environment and the transfer of plaintiff as retaliation for opposing discriminatory practices. Title VII provides that “[i]t shall be an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.... ” 42 U.S.C. § 2000e-2(a)(l). To state a claim for hostile work environment under Title VII, plaintiff must plead a set of facts that would tend to show a course of conduct “(1) that is objectively severe or pervasive — that is, if it creates an environment that a reasonable person would find hostile or abusive ..., (2) that the plaintiff subjectively perceives as hostile or abusive ..., and (3) that creates such an environment because of plaintiffs sex [or race]----” Gregory v. Daly, 243 F.3d 687, 691-692 (2d Cir.2001). Whether a work environment is hostile should be judged on the totality of the circumstances. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Specifically, the court may examine “(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether it is threatening and humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with an employee’s work performance.” Patane v. Clark, 508 F.3d 106, 113 (2d Cir.2007). To defeat dismissal under Rule 12(b)(6), “plaintiff need only plead facts sufficient to support the conclusion that she was faced -with harassment ... of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.” Id. at 113. The Court of Appeals for the Second Circuit has “cautioned against setting the bar too high’’ for the plaintiff. Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir.2003). In the instant case, plaintiffs hostile environment allegations are limited to one conclusory statement that defendant Daniels made plaintiffs work environment hostile when she sought clarification as to why she was being transferred from the Seniors’ Program to the .role of SRO. This allegation fails to meet the standard necessary to defeat a motion to dismiss. Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir.2000) (“[B]ald assertions and conclusions of law will not suffice to state a claim.”). In addition, this statement fails to meet the frequency standard and makes no connection to plaintiffs gender or race. Dismissal is therefore appropriate oh plaintiffs claim for a. hostile work environment. Plaintiff also alleges that she was retali-ateid against based on her October 4, 2006 letter to defendants in which she claimed that she was discriminated against based on her race, color, gender and age and that such retaliation violated her rights under Title VII. In order to establish a retaliation claim under Title VII, plaintiff must show “(1) participation in a protected activity known to the defendant; ' (2) an employment action disadvantaging the plaintiff; and (3) a causal connection between the protected activity and the adverse employment action.” Feingold v. New York, 366 F.3d 138, 156 (2d Cir.2004). Plaintiff alleges that her October 4 letter was a protected activity and. that the employment action that disadvantaged her was her transfer from the director position. The October 4 letter meets the first prong insofar as plaintiff alleges conduct that is proscribed by Title VII. The second prong is met by the removal of plaintiff from, as she claims, a more coveted and prestigious position of director of *570 the Seniors’ Program to being a patrol officer.- See de la Cruz v. New York City Human Resources Admin. Dep’t of Social Servs., 82 F.3d 16, 21 (2d Cir.1996) (finding that transfer of plaintiff to a less prestigious unit was an adverse employment action even though a “thin” argument). Finally, plaintiff has established the third prong by the temporal proximity between the two events. See Feingold, 366 F.3d at 156 (“[T]he requirement that [plaintiff] show a causal connection between his complaints and his termination is satisfied by the temporal proximity between the two.”). Dismissal, therefore, is inappropriate on this count. II. Violation of the Fourteenth Amendment to the United States Constitution Count II of plaintiffs complaint is a tangled web of allegations that the individual defendants violated plaintiffs Fourteenth Amendment rights guaranteed by 42 U.S.C. §§ 1981, and 1983. Although plaintiff titled count II as under the Equal Protection Clause, several of her claims assert due process violations. A. Contract Claims First, plaintiff alleges that defendants Norwood and Daniels interfered with plaintiffs right to contract because of her race under the collective bargaining agreement (“CBA”) in place between plaintiff, ;her union and the Bridgeport Police Department. Because there are no allegations in the complaint regarding plaintiffs rights under the CBA or how defendants interfered with such rights, dismissal is appropriate on this charge. The Court, however, will grant plaintiff leave to replead this charge. B. First Amendment Claim Second, plaintiff alleges that defendants acted in retaliation against plaintiff for exercising her First Amendment rights. Presumably, these rights are related to her written complaint of discrimination and the October 4 letter, the only instances of speech included in the complaint. Courts have recognized the rights of government employees as public citizens to free speech, but have balanced that right with the government’s interest in “promoting efficient public service by its employees.” Hale v. Mann, 219 F.3d 61, 70 (2d Cir.2000); see also Garcetti v. Ceballos, 547 U.S. 410, 423, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) (“When an employee speaks as a citizen addressing a matter of public concern, the First Amendment requires a delicate balancing of the competing interests surrounding the speech ■ and its consequences.”). Therefore, in certain instances, the government may regulate and act against its employees’ speech. To establish a claim that she was retaliated against for her speech, plaintiff must show that (1) the speech at issue was made as a citizen on matters of public concern rather than as an employee on matters of personal interest; (2) she suffered an adverse employment action; and (3) the speech was at least a substantial or motivating factor in the adverse employment action. Johnson v. Ganim, 342 F.3d 105, 112 (2d Cir.2003). Speech is in a matter of public concern if relates “to any matter of political, social, or other concern to the community.” Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The Court of Appeals for this circuit has recognized that “[w]hether an employee’s speech addresses a matter of public concern is a question of law for the court to decide, taking into account the content, form, and context of a given statement as revealed by the whole record.” Lewis v. Cowen, 165 F.3d 154, 163 (2d Cir.1999). Where the speech is on a mat *571 ter of personal interest only, the “government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary____” Connick, 461 U.S. at 146, 103 S.Ct. 1684. Speech that is meant to air or redress personal grievances is not protected under the First Amendment as not a matter of public concern. Lewis, 165 F.3d at 163-64. Because the speech in this case was solely related to personal, not public, matters, it is not protected by the First Amendment, and dismissal is appropriate on this charge. See Ruotolo v. City of New York, 514 F.3d 184 (2d Cir.2008) (affirming dismissal where speech was related to personal grievance). C.Due Process Violation Next, plaintiff alleges that she was deprived of her due process rights and her equal protection rights by her transfer and that such transfer was based on her race and gender, as evidenced by her replacement by a male Hispanic co-worker. Further, similarly-situated white and Hispanic employees were not similarly treated. Finally, this was the result of defendant Police Department’s failure to train and supervise its employees. To the extent that plaintiff makes a claim under the Due Process Clause, such claim must fail. An employee’s due process rights may be violated only if she has a property right in his continued employment as determined by an independent source, such as state law. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). While plaintiff alleges that she held a property interest in her continued employment, she neither provides nor points to any law, case, statute, city charter, contract or collective bargaining agreement which provides or defines that right. See Levesque v. Town of Vernon, 341 F.Supp.2d 126 (D.Conn.2004) (reviewing town charter to determine employee’s property interests in- continuing employment); see also Conn. Gen.Stat. § 7-474(0 (providing that a collective bargaining agreement supercedes a municipal charter on certain employment matters). Therefore, dismissal is appropriate on this claim., Further, “assignments and transfers generally do not implicate a protected property interest for the purposes of due process, unless accompanied by a loss in pay.” Lynch V. McNamara, 342 F.Supp.2d 59, 65-66 (D.Conn.2004); see also Ferraro v. City of Long Branch, 23 F.3d 803 (3d Cir.1994) (affirming dismissal of due process charge because transfer with a loss of responsibilities did not implicate property right); Huang v. Bd. of Governors, 902 F.2d 1134, 1142 (4th Cir.1990) (transfer or interdepartmental demotion, without loss of rank or pay, does not impinge upon a property interest). Because plaintiff has not alleged any loss in pay or rank, dismissal is appropriate on plaintiffs due process challenge. D. Failure to Train or Supervise In addition, plaintiff cannot maintain an action against the individual defendants for failure to train or supervise employees as she has not sufficiently asserted any facts that would support such a claim. E. Equal Protection Violation To the extent that plaintiff asserts a class of one theory insofar as she alleges that she has been intentionally treated differently from others similarly situated and that there is -no rational basis for the difference in treatment, Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000), the Supreme Court has recently held that an action based on a “class of one” theory cannot be maintained in the public employment con *572 text. See Engquist v. Or. Dep’t of Agric., —U.S.-128 S.Ct. 2146, 170 L.Ed.2d 975 (2008). A “class of one” claim is thus inappropriate in this case. Finally, as to plaintiffs claims that her equal rights were violated, plaintiff has sufficiently alleged that she was treated differently on account of her race or gender by defendant Daniels. To survive a motion to dismiss on an Equal Protection Claim, plaintiff need only “meet the standard set forth in Fed.R.Civ.P. 8(a), which requires a ‘short and plain statement of the claim showing that the pleader is entitled to relief.’ ” Williams v. N.Y. City Hous. Auth, 458 F.3d 67, 71-72 (2d Cir.2006). Specifically, plaintiff has sufficiently alleged that she is a black, African-American woman who has been subject to an adverse employment decision. Such claims, however, can go forward under section 1983 only against Daniels in his individual capacity. Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991). To state a claim for relief under section 1983, plaintiff must allege that defendants, acting under color of state law, deprived her of a constitutionally or federally protected right. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 930, 102 S.Ct. 2744, 73 L.Ed.2d 482 (1982); Washington v. James, 782 F.2d 1134, 1138 (2d Cir.1986). An individual acts under color of state law when he exercises “some right or privilege created by the State ... or by a person for whom the State is responsible,” and is “a person who may fairly be said to be a state actor.” Lugar, 457 U.S. at 937, 102 S.Ct. 2744. Generally, a public employee acts under color of state law when he acts in his official capacity or exercises his responsibilities pursuant to state law. See West v. Atkins, 487 U.S. 42, 50, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988). Here, there are sufficient allegations in the complaint to set forth a claim under section 1983 as to Daniels. As to defendant Norwood, the complaint alleges liability based on a theory respondeat superior. Liability under section 1983 cannot arise under a theory of respondeat superior on a defendant who acts solely in a supervisory capacity. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (discussing municipal liability). Plaintiff must allege the supervisor’s personal involvement in the illegal conduct. Johnson v. Newburgh Enlarged Sch. Dist., 239 F.3d 246, 254 (2d Cir.2001). As the Court of Appeals for this Circuit has previously stated: “Personal involvement” is not limited to direct participation by the supervisor in the challenged conduct, but may also be established by evidence of an official’s (1) failure to take corrective action after learning of a subordinate’s unlawful conduct, (2) creation of a policy or custom fostering the unlawful conduct, (3) gross negligence in supervising subordinates who commit unlawful acts, or (4) deliberate indifference to the rights of others by failing to act on information regarding the unlawful conduct of subordinates. Hayut v. State Univ. of N.Y., 352 F.3d 733, 753 (2d Cir.2003). To the extent that plaintiff has alleged any actions by Norwood that violated her rights, these allegations are based on conclusory statements as well as bald assertions that cannot defeat a motion to dismiss. Plaintiffs allegations that there was a policy or custom against African-American females is unsupported by any other allegation in the complaint. In addition, there is no allegation that Nor-wood knew of any of Daniels’ alleged wrongful conduct. Therefore, the motion will be granted as to defendant Norwood. *573 III. Claims under Connecticut Law Claims under CFEPA are analyzed in the same manner as those under Title VII. Brittell v. Dep’t of Correction, 247 Conn. 148, 164, 717 A.2d 1254 (1998). Therefore, plaintiffs hostile work environment claim under Conn. Gen.Stat. § 46a-60(a) will be dismissed, but her retaliation claim can survive. CONCLUSION For the foregoing reasons, defendants’ motion to dismiss (Doc. # 28) is GRANTED in part and DENIED in part. Plaintiff is instructed to amend her complaint consistent with this ruling within ten days. MEMORANDUM OF DECISION ON PLAINTIFF’S MOTION FOR RECONSIDERATION AND DEFENDANTS’ CROSS-MOTION TO STRIKE Plaintiff Verna Kearney has filed a motion asking the Court to reconsider its order granting defendants’ motion to dismiss in part entered on July 30, 2008 (Doc. # 36). Subsequently, defendants City of Bridgeport Police Department, Chief Bryan Norwood and Lieutenant David Daniels filed an opposition to ■ plaintiffs motion as well as a cross-motion to strike plaintiffs second amended complaint. FACTS The underlying facts and the identities of the parties are set forth in the Court’s July 30 order. On August 8, plaintiff filed the instant motion for reconsideration on the grounds that the Court overlooked relevant case law and ignored key facts. DISCUSSION A motion' for reconsideration may be based solely upon “matters or controlling decisions which counsel believes the Court overlooked in the initial decision or order.” Local R. Civ. Proc. 7(c)(1). Such a motion should be granted only where the court has overlooked facts or precedents which might have “materially influenced” the earlier decision. Park South Tenants Corp. v. 200 Cent. Park South Assocs. L.P., 754 F.Supp. 352, 354 (S.D.N.Y.1991). The movant’s burden is made weighty to avoid “wasteful repetition of arguments already briefed, considered and decided.” Weissman v. Fruchtman, 124 F.R.D. 559, 560 (S.D.N.Y.1989). Plaintiff first argues that the Court wrongly excluded extrinsic evidence included in plaintiffs opposition papers. The Court relied on Robinson v. Gov’t of Malay., 269 F.3d 133, 141 n. 6 (2d Cir.2001) and Samuels v. Air Transp. Local 504 992 F.2d 12, 15 (2d Cir.1993) for the proscription against admitting extrinsic evidence on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Plaintiff argues that these cases are in conflict and therefore the Court should have reviewed plaintiffs evidence. Plaintiffs argument is in error. In both decisions, the Court of Appeals ruled that a district court cannot review evidence outside the complaint in ruling on a motion to dismiss under Rule 12(b)(6) for failure to state a claim' — the type of motion that defendants filed. See, e.g., R.S. v. Ridgefield Bd. of Educ., 534 F.Supp.2d 284, 286 n. 2 (D.Conn.2008) (disregarding evidence offered in opposition to motion to dismiss). On this issue, the Court will grant reconsideration and adhere to its previous ruling. Plaintiff next claims, without pointing to any cases in support of her argument, that the Court should not have dismissed her claims of a hostile work environment because the complaint contained sufficient allegations to allow such claim to go forward. As discussed in the Court’s previous ruling, a claim that plaintiffs *574 rights under Title VII were violated by the creation of a hostile work environment requires plaintiff to demonstrate a course of conduct “(1) that is objectively severe or pervasive — that is, if it creates an environment that a reasonable person would find hostile or abusive ..., (2) that the plaintiff subjectively perceives as hostile or abusive ..., and (3) that -creates such an environment because of plaintiffs sex [or race].... ” Gregory v. Daly, 243 F.3d 687, 691-692 (2d Cir.2001). A claim for hostile work environment is “based on the cumulative effect of individual acts” and that “the acts constituting a hostile work environment are part of one unlawful employment practice.” National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). As the Supreme Court has indicated, the language of Title VII: is not limited to ‘economic’ or ‘tangible’ discrimination. The phrase [terms, conditions, or privileges of employment’ evinces a congressional intent ‘to strike at the entire spectrum of disparate treatment of men and women’ in employment, which includes requiring people to work in a discriminatorily hostile or abusive,environment. Harris v. Forklift Sys., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). Further, as the Court of Appeals has stated: Isolated incidents typically do not rise to the level of a hostile work environfnent unless they are ‘of sufficient severity’ to ‘alter the terms and conditions of employment as to create such an environment.’ Generally, incidents must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive. Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir.2006) (addressing appeal of summary judgment). In its July 30 order, the Court recognized only plaintiffs allegation that defendant Daniels made remarks to plaintiff as supporting a hostile work environment claim. Plaintiff now alleges that the full course of conduct related to plaintiffs transfer constituted the hostile work environment. Specifically, plaintiff points to (1) her reassignment from the Seniors Program to her work as a School Resource Officer; (2) defendant Daniels’ explanation for plaintiffs transfer; (3) plaintiffs written discrimination complaint; (4) several senior citizens approaching Mayor Fabrizi at a public hearing on September 12, 2006; (5) plaintiff being replaced by a younger, Hispanic male; (6) plaintiff feeling “humiliated” at her treatment by defendant Daniels; (7) her written complaint to defendant Daniels and Sergeant Meekins on October 4, 2006; (8) Daniels’ statement on October 11, 2006 in handing her a transfer letter; and (9) the difference in the accrual of compensatory time between plaintiff and her replacement. Boiled to its essence, plaintiffs hostile work environment claim alleges that she was transferred, mistreated and humiliated by defendants and such actions created a hostile work environment on the basis of plaintiffs sex and race. The “pervasive” requirement of a Title VII claim is met, according to plaintiff, by the transfer combined with Daniels’ treatment of plaintiff. While the Court is highly skeptical that plaintiffs claims meet the “pervasive” standard required of a hostile work environment claim, in light of the liberal pleading requirement of Bell Atl. Corp. v. Twombly, — U.S. —, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), it must conclude that the bare allegations of her complaint may give rise to a valid claim for hostile work environment and will leave plaintiff to her proof. See Patane v. Clark, 508 F.3d 106 (2d Cir.2007); Kassner v. 2nd *575 Ave. Delicatessen, Inc., 496 F.3d 229 (2d Cir.2007) (reversing dismissal of a Title VII hostile work environment claim). Therefore, the Court will grant plaintiffs motion for reconsideration and finds dismissal inappropriate on plaintiffs hostile work environment claim at this stage. Similarly, plaintiffs claims under the Connecticut Fair Employment Practices Act (“CFEPA”) should not be dismissed to the extent that they mirror plaintiffs Title VII hostile work environment claim. CONCLUSION For the foregoing reasons, the Court GRANTS plaintiffs motion for reconsideration (Doc. #38). Upon reconsideration, the Court’s previous ruling is vacated to the extent that plaintiffs Title VII hostile work environment and CFEPA claims were dismissed. Plaintiff is instructed to amend her complaint consistent with this ruling within ten days. Accordingly, defendants’ cross-motion to strike plaintiffs second amended complaint (Doc. #41) is DENIED as moot. Footnotes [1] Plaintiff has submitted exhibits and evidence with her opposition to defendants’ motion to supplement her complaint. Because extrinsic evidence outside the complaint is inadmissible in responsé to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court has disregarded this evidence. See Robinson v. Gov’t of Malay., 269 F.3d 133, 141 n. 6 (2d Cir.2001) ("A district court 'may' consult evidence to decide a Rule 12(b)(1) motion in contrast with a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, where it may not.”); Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir.1993) (On a Rule 12(b)(6) motion to dismiss, "only the facts alleged in the pleadings, documents attached as exhibits or. incorporated by reference in the pleadings and matters of which judicial notice may be taken are considered.”).