Opinion
Index No. 942/2023
09-25-2024
Roger Brown, Plaintiff, v. Department of Education of the City of New York, Defendant.
Self-represented Petitioner Gineth Rodriguez. For City Defendants: Ayele Townsend of the New York City Law Department, Brooklyn Tort Division.
Unpublished Opinion
Self-represented Petitioner Gineth Rodriguez.
For City Defendants: Ayele Townsend of the New York City Law Department, Brooklyn Tort Division.
Hon. Patria Frias-Colón, J.S.C.
Recitation as per CPLR §§ 2219(a) and/or 3212(b) of papers considered on review of this motion:
NYSCEF Doc #s 3-14, 20 by Defendant
NYSCEF Doc #s 18-19 by Plaintiff
Upon the foregoing cited papers and after oral arguments on July 10, 2024, pursuant to CPLR §§ 3211(a)(5) and 3211(a)(7), Defendant New York City Department of Education's ("DOE") Motion to Dismiss the Complaint because the claims are partially time-barred, or partially barred by collateral estoppel, and pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), otherwise fail to state a cause of action, is GRANTED. Plaintiff's claims are partially time-barred and fail to properly plead claims of discrimination and retaliation under Title VII.
Special acknowledgment to Intern Claire Sterin of New York Law School for the assistance in the drafting of this Opinion.
BACKGROUND
This action arises from discrimination and retaliation allegations. More specifically, Plaintiff Roger Brown, who identifies as Black African of Ghanaian descent, alleges being discriminated and retaliated against while employed by DOE Defendant. Plaintiff began his teaching career in 2015 as a substitute teacher with the DOE. He began working at Rockaway Collegiate High School in 2018. Plaintiff alleges he was denied Q status payrate because of his race and retaliated against for complaining about it.
NYSCEF Doc. # 6.
Id. at p. 3.
Id. at p. 3
Id. at p. 4.
Prior to the commencement of the instant proceeding, following a stipulation of settlement between Plaintiff and the DOE, Plaintiff was awarded Q status payrate from September 2018 through June 2019 and he acknowledged said settlement was limited to the unique facts of that case and would not constitute precedent for other disputes between the parties. At the conclusion of the agreed upon period, Plaintiff was then returned to O status payrate, and in 2021, the United Federation of Teachers ("UFT") filed a grievance on Plaintiff's behalf seeking Q status payrate between 2019 and 2022. Through arbitration, the grievance was denied because it was untimely and there was no evidence establishing Plaintiff was employed to cover a vacancy to entitle him to Q status payrate. As a result of said arbitration decision, on May 16, 2022 in New York County Supreme Court, Plaintiff commenced an Article 75 proceeding to vacate it. The Court upheld the arbitrator's decision and denied Plaintiff's Article 75 Petition finding said arbitrator's decision was well-reasoned and supported by the record. In his Article 75 proceeding, Plaintiff did not allege discrimination.
NYSCEF Doc. # 8 at p. 2.
Id.; NYSCEF Doc. # 5 at pp. 6-7.
NYSCEF Doc. # 9.
Id. at pp. 3-5.
NYSCEF Doc. #s 10 & 11.
NYSCEF Doc. # 11 at pp. 2-3.
See NYSCEF Doc. # 10.
In the instant matter, Plaintiff alleges entitlement to Q status payrate for three school years (2019-2020, 2020-2021, and 2021-2022) and alleges racial discrimination as the impetus for the denial. Plaintiff alleges he was subject to unequal pay because he is a Black African man of Ghanaian national origin who speaks with a Ghanaian accent. Plaintiff alleges that similarly situated individuals outside Plaintiff's protected status of color, race and national origin, and who did not complain raise discrimination allegations were paid more than plaintiff. Plaintiff points to Ms. Jill Glass and Mr. Lawrence Zajac, both white Irish, were paid on a regular payroll status while teaching fewer classes than Plaintiff. During oral argument, the DOE confirmed Ms. Jill Glass and Mr. Lawrence Zajac are differently situated than Plaintiff Brown because they are both tenured teachers. Plaintiff also alleges, during unspecified times, he complained to Principal Murray about his unequal pay issue.
NYSCEF Doc. # 6.
Id. at pp. 2-3.
Id. at p. 6.
Id.; NYSCEF Doc. # 18 at pp. 8 & 12.
Oral Argument.
NYSCEF Doc. #s 6 at p. 6 & 18 at p. 8.
On March 20, 2024, pursuant to CPLR §§ 3211(a)(5) and 3211(a)(7), Defendant filed the instant motion seeking dismissal. The City Defendant argues Plaintiff's claims related to the 2019-2020 and 2020-2021 school years are time-barred and is estopped from contesting the Q status payrate because it was previously litigated. Finally, Defendants argue that under Title VII, Plaintiff failed to plead a claim of race and national origin discrimination or retaliation.
NYSCEF Doc. #s 3, 4 & 5 at pp. 9-18.
DISCUSSION
Doctrine of Collateral Estoppel does not preclude Plaintiff's Discrimination Claims
Defendant argues that the doctrine of collateral estoppel bars Plaintiff from re-litigating entitlement to the Q status payrate because this issue was already litigated on the merits and decided adversely against Plaintiff. Defendant supports its argument with the submissions of the Plaintiff's prior Article 75 Petition and court Order dated December 16, 2022, dismissing Plaintiff's Petition and upholding the arbitrator's award denying Plaintiff's pay status grievance. Plaintiff argues he is not estopped from bringing his claim because Plaintiff's race, national origin, and retaliation claim were not at issue in arbitration or the Article 75 appeal.
NYSCEF Doc. # 5 at pp. 10-11.
NYSCEF Doc. # 10.
NYSCEF Doc. # 11.
NYSCEF Doc. # 9.
NYSCEF Doc. # 18 at pp. 6-8.
The doctrine of collateral estoppel "precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same." Under federal law, Collateral estopped applies when "(1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits." Under New York law, "collateral estoppel bars re-litigation of an issue when (1) the identical issue necessarily was decided in the prior action and is decisive of the present action, and (2) the party to be precluded from relitigating the issue had a full and fair opportunity to litigate the issue in the prior action." The doctrine of collateral estoppel was developed to address "where a party seeks to repeatedly litigate the same issue by means of more specific pleadings, by repackaging the same factual allegations under different causes of action, or by filing identical actions against different defendants."
Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500 (2nd Dept. 1984).
Williams v. New York City Transit Auth., 171 A.D.3d 990, 991-92 (2nd Dept. 2019).
Evans v. Ottimo, 469 F.3d 278, 281 (2d Cir. 2006).
Zherka v. City of New York, 459 Fed.Appx. 10, 13 (2d Cir. 2012).
Here, Plaintiff did not previously litigate the issue of whether he was denied Q status payrate due to alleged racial discrimination and retaliation, therefore collateral estoppel does not apply to the circumstances in this case since the issues were not raised in the arbitration nor the Article 75 Petition. See Chiara v. Town of New Castle, 61 A.D.3d 915 (2d Dept. 2009); see also Washington v. New York City Dept. of Educ., 740 Fed.Appx. 730 (2d Cir. 2018) ("The issue of discrimination was actually litigated and decided, and the arguments raised were identical to those briefed for the discrimination claim on appeal"). Therefore, this branch of Defendant's motion is denied.
Some allegations are time-barred given Statute of Limitations
Defendant argues that Plaintiff's Title VII claims arising during the 2019-2020 and 2020-2021 school years are partially time barred because said claims were not submitted within the 300-day statutory period required by 42 U.S.C. § 2000e-5(e). Defendant contends that Plaintiff had actual knowledge of any alleged discriminatory conduct since September 2019, yet did not file an Equal Employment Opportunity Commission ("EEOC") complaint until May 24, 2022.
NYSCEF Doc. # 5 at pp. 9-10.
Id.
Pursuant to 42 U.S.C. § 2000e-5(e), a charge against a state or local agency must be filed within three hundred days after the alleged unlawful employment practice. See 42 U.S.C. § 2000e-5(e). In New York, the statute of limitations for a claim with the EEOC is 300 days. A discriminatory act occurs on the day that it happened, and a party must file the charge within 300 days of that date to have the ability to recover for it. Discrete acts of discrimination that occur outside of the statutory period are precluded from recovery, even if related acts of discrimination occurred within the statutory period.
Cherry v. City of New York, 381 Fed.Appx. 57, 58 (2d Cir. 2010).
Nat'l R.R. Passenger Corp. v. Morga n, 536 U.S. 101, 110 (2002); Murphy v. Dept. of Educ of City of New York, 155 A.D. 637 (2d Dept. 2017).
Murphy, 155 A.D. at 639; McGullam v. Cedar Graphics, Inc., 609 F.3d 70, 75 (2d Cir. 2010).
Here, Plaintiff fails to contest that his claims are partially time-barred and because the EEOC charge was filed on May 24, 2022, the alleged charges that occurred before July 28, 2021, 300 days prior to the filing, are time barred. Since discriminatory acts occur on the day that they happen, they started in September 2019. Therefore, pursuant to 42 U.S.C. § 2000e-5(e), Defendant's motion to dismiss Plaintiff's claims that the DOE engaged in discriminatory payment practices in the 2019-2020 and 2020-2021 school years for being time-barred is granted.
NYSCEF Doc. # 18 at p. 5.
Nat'l R.R. Passenger Corp., 536 U.S. at 110.
Plaintiff Failed to Plead Claim of Discrimination
Defendant argues that Plaintiff failed to plead that any adverse employment action taken against him was motivated by discriminatory animus based on Plaintiff's race and national origin and was treated less favorably than similarly situated counterparts outside of his protected class. Defendant also argues Plaintiff does not allege other facts that raise an inference of discrimination and merely argues that the DOE's failure in awarding him the higher payrate must have been because of his race and national origin. Plaintiff argues that two similarly situated teacher outside of Plaintiff's protected status (White and of Irish national origin) were paid on a Q status payrate and Plaintiff complained to Principal Murray about being treated unequally based on his race and national origin. Plaintiff argues that he was employed to cover a vacancy and thus should be compensated by the higher pay status.
NYSCEF Doc. # 5 at p. 8.
Id. at p. 15.
NYSCEF Doc. # 18 at p. 12.
Id. at p. 10.
"When reviewing a defendant's motion to dismiss the complaint for failure to state a cause of action, a court must give the complaint a liberal construction, accept the allegations as true and provide plaintiffs with the benefit of every favorable inference." "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss." "Unlike a motion for summary judgment where the court searches the record and assesses the sufficiency of the parties' evidence, on a motion to dismiss the court merely examines the adequacy of the pleadings." The "ultimate question is whether, accepting the allegations and affording these inferences, plaintiff can succeed upon any reasonable view of the facts stated." However, "threadbare recitals of the elements of the cause of action, supported by mere conclusory statements do not suffice" and the complaint "must contain more than 'naked assertions devoid of further factual enhancement."
Cortlandt St. Recovery Corp. v. Bonderman, 31 N.Y.3d 30. 38 (2018).
EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11 (2005).
Davis v. Boeheim, 24 N.Y.3d 262 (2014).
Perez v. Y & M Transportation Corp., 196 N.Y.S.3d 145 (2d Dept. 2023) (quoting Doe v. Bloomberg L.P., 36 N.Y.3d 450 [2021]).
Sosa v. New York City Dept. of Educ., 368 F.Supp.3d 489 (E.D.NY 2019) (quoting Ashcroft v. Iqbal, 556 U.S. 662 [2009]).
Generally, "discrimination claims under Title VII are analyzed under the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." However, at the motion to dismiss stage, a plaintiff "is not required to plead a prima facie case as required under McDonnell Douglas." To defeat a motion to dismiss in a Title VII discrimination case, a plaintiff must allege "(1) the employer took adverse action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision." Plaintiffs may meet this standard by "alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination." Plaintiffs "may support an inference of discrimination by demonstrating that similarly situated employees of a different nationality were treated more favorably, but in order to make such a showing, the plaintiff must compare herself to employees who are similarly situated in all material respects."
Daniel v. City of New York, No. 20 CIV. 11028 (PAE), 2021 WL 5988305 (S.D.NY Dec. 16, 2021).
Id. at 6 (citing Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 84 [2d Cir. 2015]).
Vega, 801 F.3d at 87.
Daniel, 2021 WL 5988305 at 6 (citing Littlejohn v. City of New York, 795 F.3d 297 [2d Cir. 2015]).
Id. at 8 (citing Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 [2d Cir. 1999]).
Here, Plaintiff fails to plead that his race, color, and national origin was a motivating factor in his employment action. Plaintiff merely states that he complained to Principal Murray about the alleged discrimination at unspecified times and alleges Ms. Jill Glass and Mr. Lawrence Zajac are similarly situated to him, are outside of his protected class and were treated differently than Plaintiff. Plaintiff's summons and complaint do not allege facts to determine whether Ms. Jill Glass and Mr. Lawrence Zajac are similarly situated to Plaintiff in all material aspects. Therefore, Defendant's branch of motion seeking dismissal of discrimination for failure to plead claims is granted.
NYSCEF Doc. # 6 at p. 6; See Polite v. Marquis Marriot Hotel, 195 A.D.3d 965 (2d Dept. 2021) ("Conclusory allegations or bare legal assertions with no factual specificity are not sufficient and will not survive a motion to dismiss").
Plaintiff Failed to Plead Claim of Retaliation
Defendant argues Plaintiff failed to plead a retaliation claim by not demonstrating he was subjected to adverse employment action as a result of his participation in a protected activity. Defendant also argues that Plaintiff's retaliation claim should be dismissed because the alleged protected activity occurred after the alleged adverse employment action. Plaintiff argues he is only required to include facts that plead a cause of action and pleads that the named employees are similarly situated and he was paid unequally after his complaints of discrimination.
NYSCEF Doc. # 5 at pp. 16-17.
Id.
NYSCEF Doc. # 18 at p. 13.
Under Title VII, it is unlawful for employers to discriminate against employees because "he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter." For a retaliation claim to survive a motion to dismiss, Plaintiff must allege that "(1) defendants discriminated-or took an adverse employment action-against him, (2) 'because' he has opposed any unlawful employment practice." Asserting rights against discrimination is a protected activity. An adverse employment action is a "materially adverse change in the terms, privileges, duration and conditions of employment."
Vega, 801 F.3d at 90.
Id.
Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002).
Id. at 720.
Here, Plaintiff failed to plead a retaliation claim. Firstly, the DOE had already stopped paying Plaintiff the Q status payrate (the alleged adverse employment action) before his alleged complaints to Principal Murray and his filing of the May 2022 EEOC charge. As stated above, Plaintiff's allegations regarding the complaints made to Principal Murray and the subject comparators are conclusory, with no factual specificity, and are insufficient to survive a motion to dismiss. Therefore, pursuant to Title VII, Defendant's motion to dismiss the retaliation claims is granted because Plaintiff failed to plead such a claim.
See Dinis v. NY City Dept. of Educ., No. 22-CV-7741 (VEC) (JW), 2024 U.S. Dist. LEXIS 51545 (S.D.NY Mar. 21, 2024) ("It is axiomatic that a retaliation claim cannot be based on an adverse action taken before the protected activity").
CONCLUSION
For the reasons stated herein, Defendant's motion to dismiss is granted given Plaintiff's claims are partially time-barred and Plaintiff failed to properly plead claims of discrimination and retaliation under Title VII. Plaintiff's complaint is dismissed with prejudice in its entirety.
This constitutes the Decision and Order of the Court.