MEMORANDUM OPINION AND ORDER The pro se plaintiff, Hepzibah Allen, brings this action against the defendants, the City of New York, the New York City Department of Education (“DOE”), and Richard Forman, alleging federal, state, and local claims arising from alleged discrimination by the defendants based on race and color and alleged retaliation. The defendants move to dismiss the amended complaint pursuant to Rules 12(b) (1) and 12(b) (6) because of procedural deficiencies as well as failure to allege facts that rise to the level of unlawful discrimination or retaliation. The motion to dismiss is granted as to all claims, without prejudice to the filing of another amended complaint. I. Rule 12(b) (1) of the Federal Rules of Civil Procedure is the mechanism for moving to dismiss a complaint for lack of subject matter jurisdiction. “Dismissal of a case for lack of subject matter jurisdiction under Rule 12(b) (1) is proper ‘when the district court lacks the statutory or constitutional power to adjudicate it.’” Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d Cir. 2009) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). In considering a Rule 12(b) (1) motion, courts must construe all ambiguities and inferences in a plaintiff’s favor. However, a court may refer to evidence outside of the pleadings, and the burden is on the plaintiff to prove by a preponderance of the evidence that jurisdiction exists. See Makarova, 201 F.3d at 113. In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff’s favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court’s function on a motion to dismiss is “not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated “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). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, “the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions.” Id. When presented with a motion to dismiss pursuant to Rule 12(b)(6), the Court may consider documents that are referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff’s possession or that the plaintiff knew of when bringing suit, or matters of which judicial notice may be taken. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). The pleadings and allegations of a pro se plaintiff must be construed liberally for the purposes of Rule 12(b)(6). See McKithen v. Brown, 481 F.3d 89, 96 (2d Cir. 2007) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 145-46 (2d Cir. 2002). Additionally, the submissions of a pro se litigant should be interpreted to “raise the strongest arguments that they suggest.” Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)); see also Brooks v. City of New York, No. 17-cv-03115, 2018 WL 3130602, at *1 (S.D.N.Y. June 26, 2018). But the Court cannot invent factual allegations that the plaintiff has not pleaded. See Ambrose v. Dell, No. 12-cv-6721, 2016 WL 894456, at *3 (S.D.N.Y. Mar. 8, 2016). II. The following allegations, set forth in the Amended Complaint, are accepted as true for the purposes of this motion. Hepzibah Allen is African-American. Am. Compl. 7. She has been employed by the DOE as a social worker since January, 2005 and has worked in that capacity at Clara Barton High School (“CBHS”) in Brooklyn, New York since September, 2014. Id.
7-8. She works under the defendant, Richard Forman, who is the principal at CBHS. Id. 8. Sometime prior to January 12, 2017 a teacher, Viktoriya Mushailova, informed Forman that the plaintiff had failed to provide counseling services required by a student’s Individualized Educational Program and that the plaintiff had entered inaccurate student attendance information into the Special Education Student Information System (“SESIS”). Id. 19. On January 12, 2017, the Office of Special Investigations (“OSI”) received a referral from the Special Commissioner of Investigation (“SCI”) concerning the plaintiff’s conduct after Forman told the SCI what he had heard from Musahilova. Id. 18. On January 31, 2017 the plaintiff was requested to attend a meeting with Forman, a union representative, the assistant principal, and an investigator from the OSI, and was given 48-hour notice that an investigation into her alleged employee misconduct had been filed. Id. 20. Sometime in March, 2017, the plaintiff filed a charge with the EEOC alleging race discrimination by Forman and the DOE. Id. 24. In her EEOC charge, the plaintiff alleged that white employees at CBHS often were not disciplined, whereas black employees were disciplined, that the accusations in January, 2017 about her failure to provide services were illegitimate and unfairly singled her out on account of her race, and that black social workers at CBHS, unlike white social workers, did not receive supervision. Id.
