Summary
determining that, because plaintiff's last act of an alleged "hostile and ageist work environment" occurred within the 300-day period, her claim was not time barred
Summary of this case from Alvarado v. Mount Pleasant Cottage Sch. Dist.Opinion
18-cv-05487 (KPF) (KHP)
05-08-2019
HARRIET HAREWOOD, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, ROBERT MERCEDES, in his official and individual Capacity as Principal of Middle School 390, ANDREA VARONA, in her official and individual Capacity as Assistant Principal of Middle School 390, Defendants.
REPORT & RECOMMENDATION TO: HONORABLE KATHERINE POLK FAILLA, UNITED STATES DISTRICT JUDGE
FROM: KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Harriet Harewood brings this action against her former employer, the New York City Department of Education ("DOE"), and the Principal and Assistant Principal of Middle School 390 ("MS 390") where she was formerly employed. She alleges that she was discriminated against because of her race and age in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., 42 U.S.C. §1981 ("Section 1981"), 42 U.S.C. § 1983 ("Section 1983"), the New York State Human Rights Law ("NYHRL"), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code § 8-101 et seq.
Defendants have moved to dismiss the Complaint. For the reasons discussed below, I respectfully recommend that the motion be granted.
PROCEDURAL HISTORY
On July 11, 2017, prior to filing this action, Plaintiff timely filed a complaint of discrimination with the New York State Division of Human Rights ("Division"), alleging that the DOE had discriminated against her on the basis of race and age in violation of the NYHRL and the NYCHRL. (See Doc. No. 22-2, Division Determination and Order After Investigation dated January 3, 2018.) No individual respondents were named in that complaint. The complaint was dual-filed with the United States Equal Employment Opportunity Commission ("EEOC"). The Division took the laboring oar in investigating the complaint. On January 3, 2018, the Division issued a Determination and Order After Investigation (the "Determination") finding no probable cause to believe that the DOE had engaged in or is engaging in unlawful race and age discrimination against Plaintiff. Plaintiff did not appeal that finding or obtain an administrative dismissal from the Division.
On April 17, 2018, the EEOC adopted the Division's finding and mailed Plaintiff a Notice of Right to Sue. Plaintiff then timely filed the Complaint in the instant action on June 18, 2018 (within 90 days of receiving the Notice of Right to Sue). (Doc. No. 1 ("Compl.").) Defendants move to dismiss the Complaint.
FACTUAL ALLEGATIONS IN THE COMPLAINT
Plaintiff, a 57year-old African American woman, was employed as an art teacher at MS 390 in the Bronx from September 1999 until she retired in June 2017. (Compl. ¶¶ 8-10.) She contends that her retirement constitutes a constructive discharge due to racial and/or age discrimination. (Compl. ¶¶ 8, 49-58.) At the time she retired, she was one of the oldest staff members with the most seniority. (Compl. ¶ 11.) Over the span of her career and up to the 2015-2016 school year, Plaintiff consistently received "satisfactory," "effective," and "highly effective" performance ratings. (Compl. ¶ 12.) Plaintiff alleges that in the 2012-2013 school year MS 390's Principal, Defendant Robert Mercedes, allegedly began discriminating against older and/or black teachers and staff in favor of younger and/or Hispanic individuals, and ultimately began to harshly evaluate her performance in an effort to get her to leave the school and/or set her up for involuntary termination. (Compl. ¶¶ 13-15.)
Plaintiff alleges that Mercedes, who is of Dominican descent, began asking older and/or black teachers to leave the school or forced them to leave. (Compl. ¶¶ 6, 13.) She provides an example of a black special education teacher being rated worse than her Dominican co-teacher, leading to the termination of the black teacher's employment. (Compl. ¶ 14.) She claims this pattern continued and that Mercedes has replaced a significant percentage of the older and/or black staff with white and/or Dominican teachers and/or younger teachers. (Compl. ¶ 15.)
Plaintiff explains that she was treated differently than her non-black and younger peers in a number of ways. For example, she states that she had worked as the morning scheduler for years, earning extra income as a result, but in the 2013-2014 school year this role was taken from her and given to a younger individual of Dominican descent. (Compl. ¶ 16.) She claims that, in the same school year, Mercedes wrongfully interfered with her lunch period and then retaliated against her after she complained by increasing her teaching load beyond what was permissible under the union contract. (Compl. ¶ 17.) Plaintiff states that Mercedes changed her professional duty without her permission, denied her art supplies needed for her classes, and falsely claimed that other staff members complained about Plaintiff. (Compl. ¶¶ 18-19, 25, 26, 32.)
Plaintiff states that beginning in the 2013-14 school year and continuing thereafter, she was denied the opportunity to provide afterschool instruction to students to help them prepare portfolios for specialized high schools, causing loss of income. (Compl. ¶ 20.) This was work that Plaintiff had done previously. (Id.) Then, in January 2015, Mercedes informed Plaintiff and other black teachers that he wished to terminate their employment (presumably at the end of the school year, but the Complaint is silent on the timing). (Compl. ¶¶ 21-23.) He then unjustifiably eliminated the art classroom, resulting in Plaintiff having to teach using a mobile art cart with limited supplies. (Compl. ¶¶ 27-29.) Initially, Plaintiff was refused access to an elevator. Eventually, after complaining and providing a doctor's note, she was given elevator access. (Compl. ¶¶ 28-30.) In March 2015, Mercedes declined Plaintiff the opportunity to develop a book-making class that would have resulted in additional income. (Compl. ¶ 24.)
In the fall of 2015, Defendant Varona allegedly interfered with Plaintiff's lunch period without justification. (Compl. ¶ 31.) In January 2016, Plaintiff was removed from working in an after-school program, and the opportunity was given instead to a Dominican social worker. (Compl. ¶ 35.) In the spring of 2017, Varona gave Plaintiff a "less-than-effective" rating but refused to explain the basis. On May 9, 2017, Plaintiff received a disciplinary letter after a an allegedly flimsy investigation by Mercedes and based on what Plaintiff claims were false accusations of corporal punishment of a student. (Compl. ¶¶ 37-38.) On May 23, 2017, Plaintiff received a second "less-than-effective" rating. (Compl. ¶ 40.) Plaintiff grieved the rating and its attached report, but, as of the filing of the Complaint, she had not received a response. (Compl. ¶ 41.)
Plaintiff took a leave of absence from work between May 28, 2017 and June 14, 2017 due to stress she was experiencing at work. (Compl. ¶ 42.) After Plaintiff returned, Mercedes issued another unwarranted disciplinary letter alleging that Plaintiff engaged in verbal abuse. (Compl. ¶ 44.) A disciplinary meeting was scheduled but then cancelled, and Mercedes refused to provide Plaintiff with a copy of the disciplinary letter. (Id.) Plaintiff elected to retire at the end of the 2016-2017 school year because of the harassment and discrimination by Mercedes and his administration. (Compl. ¶ 45.) Plaintiff contends that she was constructively discharged, as she never intended to stop working and would have continued working at least several more years. (Compl. ¶¶ 33, 45-46.) Plaintiff asserts that she was asked to attend a meeting about another allegation of corporal punishment and professional misconduct in May 2018, even though she had retired as of June 2017. (Compl. ¶ 48)
LEGAL STANDARD FOR MOTION TO DISMISS
When considering a motion to dismiss under Rule 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Cruz v. Beto, 405 U.S. 319, 322 (1972); Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015) (citing Ofori-Tenkorang v. Am. Int'l Grp., Inc., 460 F.3d 296, 300 (2d Cir.2006)). To survive the motion, the court must determine whether the complaint contains "sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). While detailed factual allegations are not required, the complaint must contain more than mere "labels and conclusions or formulaic recitation of the elements of a cause of action." Id. It must contain more than naked assertions devoid of "further factual enhancement." Id. As the United States Supreme Court explained in Ashcroft v. Iqbal, the "plausibility standard" asks for "more than a sheer possibility that a defendant has acted unlawfully." Id.
In Littlejohn v. City of New York, the United States Court of Appeals for the Second Circuit further elaborated on the "plausibility standard" in the context of claims for unlawful discrimination under Title VII. 795 F.3d at 310-11. Littlejohn held that the facts asserted in the complaint must "give plausible support to a minimal inference of discriminatory motivation"—the inference needed to establish a prima facie case of discrimination under the burden-shifting paradigm applicable to Title VII cases under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. at 311. However, the court made clear that it is not necessary at the pleading stage for a plaintiff to provide additional facts that would support the plausibility of "the ultimate question of whether the adverse employment action was attributable to discrimination." Id. Of course, some facts in a complaint may go to the plausibility of both a prima facie case of discrimination and the ultimate question of whether there was intentional discrimination. But for purposes of a motion to dismiss, this Court's analysis is focused only on whether the facts in the Complaint plausibly support a minimal inference of discriminatory motivation, i.e., the level needed as part of a plaintiff's prima facie case of discrimination.
When a motion to dismiss is granted, the usual practice is to dismiss the claims without prejudice and grant plaintiff leave to amend the complaint. Hayden v. Cnty. of Nassau, 180 F.3d 42, 53 (2d Cir.1999); see also Fed. R. Civ. P. 15(a)(2) ("The court should freely give leave [to amend] when justice so requires."). Leave to amend should be granted unless there is evidence of undue delay, bad faith, undue prejudice, or futility. See Foman v. Davis, 371 U.S. 178, 182 (1962).
Finally, in ruling on Defendants' motions to dismiss, the Court may consider not only the Complaint but also "the plaintiff[']s relevant filings with the EEOC and other documents related to plaintiff's claim, even if they are not attached to the complaint, so long as those filings are either incorporate[d] by reference or are integral to and solely relie[d] upon by the complaint." Littlejohn, 795 F.3d at 305 n.3 (alteration in original) (citation and internal quotation marks omitted). Moreover, "[e]ven where a document is not incorporated by reference, the court may nevertheless consider it where the complaint 'relies heavily upon its terms and effect,' which renders the document 'integral' to the complaint." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (citation omitted); see also Holowecki v. Fed. Express Corp., 440 F.3d 558, 565-66 (2d Cir. 2006) ("[W]hen a plaintiff chooses not to attach to the complaint or incorporate by reference a [document] upon which it solely relies and which is integral to the complaint, the court may nevertheless take the document into consideration in deciding the defendant's motion to dismiss, without converting the proceeding to one for summary judgment" (alteration in original ) (citation omitted)).
DISCUSSION
1. Title VII and ADEA Claims
A. Statute of Limitations
Defendants argue that most of Plaintiff's Title VII and ADEA claims are time-barred. Prior to asserting claims under Title VII or the ADEA in federal court, a plaintiff must "present the claims forming the basis of such a suit . . . in a complaint to the EEOC or the equivalent state agency." Littlejohn, 795 F.3d at 322 (quoting Williams v. N.Y.C. Hous. Auth., 458 F.3d 67, 69 (2d Cir. 2006) (per curiiam)); see also Tanvir v. N.Y.C. Health & Hosps. Corp., 480 F. App'x 620, 621 (2d Cir. 2012). Both Title VII and the ADEA require that a plaintiff first file a charge with the EEOC within 300 days of the alleged discrimination. 42 U.S.C. § 2000e-5(e)(1); Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002) ("A party . . . must file a charge within either 180 or 300 days of the date of the act or lose the ability to recover for it." (emphasis added)); Palak v. St. Francis Hosp., 2015 WL 3682805 (E.D.N.Y. 2015) ("[E]ach incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable unlawful employment practice" which will be time-barred if not brought within the applicable 300-day period (citations omitted)). Here, plaintiff filed her EEOC charge on July 11, 2017. Thus, Defendant argues that acts occurring prior to September 14, 2016 (i.e., 300 days before the date the charge was filed) are time-barred.
Defendants are correct with respect to discrete acts of discrimination that occurred outside the 300-day period. Such acts are time-barred. Nevertheless, even if they do not constitute actionable adverse employment actions, they provide relevant background evidence to any timely claims. Vega v. Hempstead Union Free School Dist., 801 F.3d 72, 88 (2d Cir. 2015); see also Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 42 (2d Cir. 2019) (noting that, "even with respect to a claim of discrete discriminatory or retaliatory acts, expiration of limitations period does not bar 'an employee from using the prior acts as background evidence in support of a timely claim'" (quoting Morgan, 536 U.S. at 105)). Here, Plaintiff's claims that she was constructively discharged as a result of ongoing discrimination in violation Title VII and the ADEA are timely, because her charge was filed within 300 days of her decision to retire and separate from the school. Flaherty v. Metromail Corp., 235 F.3d 133, 138 (2d Cir. 2000) (holding that a claim of constructive discharge accrues on date that plaintiff gave definite notice of intent to retire).
Similarly, to the extent Plaintiff has alleges a hostile work environment, such claims may be timely under a continuing violation theory. Under this theory, a plaintiff may recover for acts occurring more than 300 days before the charge was filed with the EEOC so long as the acts were part of the same hostile work environment and at least one such act occurred within the 300-day period. Morgan, 536 U.S. at 116-117. "Conduct that has been characterized as a continuing violation is 'composed of a series of separate acts that collectively constitute one unlawful employment practice.'" Washington v. Cty. of Rockland, 373 F.3d 310, 318 (2d Cir. 2004) (citing Morgan, 536 U.S. at 111 (2002) (internal quotation marks omitted)). Here, plaintiff alleges there was a racially hostile and ageist work environment that commenced in the 2013-2014 school year and continued through her constructive discharge/retirement in June 2017. Because the last act of alleged harassment occurred within the 300-day period, her claim under a continuing violations theory is not time-barred.
B. Sufficiency of Pleading - Hostile Work Environment Harassment
Hostile work environment claims are analyzed the same way under the ADEA and Title VII. Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003). To prevail, the plaintiff must show that the harassment was sufficiently severe and pervasive to alter the conditions of employment and create a hostile work environment. Feingold v. New York, 366 F.3d 138, 149-50 (2d Cir. 2004) (citing Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002)). Episodic incidents are insufficient to demonstrate a hostile work environment under federal law. Id.; Terry, 336 F.3d at 148. Instead, the plaintiff must show "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102 (2d Cir. 2010) (quoting Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006)). In determining whether a plaintiff meets the "severe or pervasive" standard, courts must consider the totality of the circumstances, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with a plaintiff's job performance. Hayut v. State Univ. of N.Y., 352 F.3d 733, 745 (2d Cir. 2003) (quotation marks omitted) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)).
Defendants argue that the episodic actions taken against Plaintiff are not sufficient, even considered in their totality, to satisfy the pleading standard for a hostile work environment claim under Title VII and the ADEA. They also point out that Plaintiff does not allege that any Defendant made age or race-related comments to her. In Walsh v. Scarsdale Union Free School District, the plaintiff alleged that he was constructively discharged and forced to retire early from his teaching job. No. 16 CIV. 3558 (NSR), 2019 WL 1316486, at *1 (S.D.N.Y. Mar. 22, 2019). The court rejected the defendant's motion to dismiss the plaintiff's hostile environment claim, finding that complaints about the "unprecedented number of informal reviews that were conducted within his classroom, in response to which he was never counseled, but which ultimately resulted in his receiving unsatisfactory performance reviews" were sufficient at the pleadings stage to state a hostile environment claim under the ADEA. Id. at *16; see also Thomas v. New York City Dept. of Educ., 938 F. Supp.2d 334, (E.D.N.Y. 2013) (declining to dismiss ADEA hostile work environment claim because complaint alleged, among other things, that defendant DOE Chancellor's comment that the DOE needed "new blood" and to "clean house of the old ways and teachers wedded to old methods" and that in accordance with their wishes, administrators at plaintiff's schools changed grades of students to fabricate disciplinary charges against plaintiff resulting in constructive termination); Murray v. New York City Board of Educ., 15-cv-3191 (RRM)(ST), slip op. at 20-21, 24 (E.DN.Y. March 21, 2019) (declining to dismiss hostile environment claims because allegations that Mercedes, the same Mercedes as in the instant case, made inappropriate comments about age at staff meetings, targeted veteran staff members, suddenly issued negative evaluations of plaintiff as she approached retirement age, and reduced plaintiff's responsibilities sufficiently plead an atmosphere of hostility toward older staff, and finding that allegations that Mercedes was indifferent to racially hostile epithets being spoken in workplace was sufficient to state hostile work environment claim under Title VII).
This Court agrees with Defendants' argument. Plaintiff's allegations are insufficient to state a plausible claim that her work environment was permeated with discriminatory intimidation, ridicule, and insult based on age and race sufficiently severe or pervasive to alter the conditions of the Plaintiff's employment and create an abusive working environment. At the April 24th conference before this Court, Plaintiff pointed to the Murray v. New York City Board of Educ., see supra, as a reason Defendants' motion should be denied. The difference between Plaintiff's and Murray's Complaints against MS 390 and Defendant Mercedes is that Murray pointed to racially hostile and ageist statements in the workplace whereas Plaintiff has not pointed to any such statements. (Compare Murray, slip op. at 2 with Compl.) The comments alleged by Murray tipped the balance for purposes of finding the pleading sufficient to state a hostile work environment claim. A number of other courts have dismissed similar hostile environment claims by teachers against the New York City DOE on a Rule 12(b)(6) motion. See, e.g., Jones v. New York City Dept. of Educ., 286 F. Supp. 3d 442, 450 (dismissing hostile environment claim under ADEA because plaintiff did not allege any comments about age in interactions at issue; notably, allegations that teachers over age 45 were given unsatisfactory ratings and replaced with younger teachers, did not move the court to find the hostile environment claim plausible); Trachtenberg v. Dep't. of Educ. of City of New York, 937 F. Supp. 2d 460, 472-73 (S.D.N.Y. 2013) (granting motion to dismiss hostile environment claim under ADEA as allegations of excessive scrutiny, negative reviews, change in classroom, scurrilous criticisms about plaintiff's social and management skills, and five other older teachers targeted for forced retirement, and being refused training opportunities provided to younger employees insufficient to state a claim). It is conceivable that Plaintiff may be able to supply additional facts supporting an inference of a hostile work environment. Therefore, this Court respectfully recommends that this claim be dismissed without prejudice.
C. Sufficiency of Pleading - Disparate Treatment Discrimination
Defendants argue that Plaintiff has failed to state a claim for age or national origin disparate treatment discrimination under the ADEA and Title VII. To plead a prima facie case of discrimination under the ADEA and Title VII, a plaintiff must make a minimal showing (1) that she is a member of a protected class; (2) that she is qualified for her position of employment; (3) that she suffered an adverse employment action; and (4) that she "can sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation." Littlejohn, 795 F.3d at 311 (emphasis in original); see also Gorzynski, 596 F.3d at 107. A plaintiff is not required to plead a prima facie case to defeat a motion to dismiss, but must plead allegations that "give plausible support to a minimal inference of discriminatory motivation." Littlejohn, 795 F.3d at 311-12 (explaining that courts "focus only on whether the allegations in the complaint give plausible support to the reduced prima facie requirements . . . in the initial phase of a litigation."); Murray, slip op. at 22.
Under Title VII, a plaintiff can prevail by demonstrating that discrimination was a motivating factor for the adverse employment action. 42 U.S.C. § 2000e-2(m); Univ. of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338, 348-49, 362 (2013) (recognizing "motivating factor" standard for Title VII discrimination claims but holding that "but-for" causation standard applies to Title VII retaliation claims). In contrast, under the ADEA, a plaintiff must prove that age was the reason for the adverse employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009). Due to the different causation standards under Title VII and the ADEA, to survive a motion to dismiss under the ADEA, a plaintiff must plausibly allege that age was the "but-for" cause of the adverse action. Gorzynski, 596 F.3d at 106. The Second Circuit recently elaborated on what is required to show "but-for" causation at the pleading stage, stating that "causation may be satisfied by allegations that 'each of the adverse actions' defendants took 'occurred against a backdrop of continuing antagonism and frustration of [the plaintiff's] professional ambitions.'" Collymore v. City of New York, 2019 WL 1568070 (2d Cir. Apr. 11, 2019) (summary order) (alteration in original) (quoting Duplan v. City of New York, 888 F.3d 612, 626 (2d Cir. 2018)) (finding that, in context of Title VII retaliation claim, pleading was sufficient to support a "but-for" causal connection).
Defendants argue that the Complaint fails to sufficiently plead the existence of any adverse employment actions based on race and age. They argue that poor evaluations, disciplinary letters for corporal punishment and verbal abuse of her students, and loss of per session income are not independently actionable adverse employment actions; Defendants argue that, even when considered together, such actions would be insufficient to cause a constructive discharge. They also argue that the allegations are insufficient to demonstrate that any adverse action was motivated by racial or age animus. In support of these arguments, Defendants raise merits-based arguments, including that the only teacher to receive a "ineffective" rating in the 2016-2017 school year was a young, white teacher and that the alleged similarly situated comparators who were treated better than Plaintiff are not similarly situated in all material respects.
An adverse employment action is a materially adverse change in the terms and conditions of employment. Sanders v. New York City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004). Examples include a "termination of employment, a demotion evidenced by decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Id. (citations omitted); see Rodriguez v. Bd. of Educ., 620 F.2d 362, 366 (2d Cir. 1980) (finding that art teacher's transfer from high school to elementary school constituted an adverse employment action, as the "radical change in the nature of the work" was effectively a "demotion" that rendered her twenty years of experience "useless"); Bagarozzi v. New York City Dept. of Educ., 18-cv-4893, 2019 WL 1454316, *5 (S.D.N.Y. March 31, 2019) (finding that reassignment rendering plaintiff unable to earn per session pay which she had obtained previously constituted an adverse employment action action); Murray, 15-cv-3191, slip op. at pp. 17-19 (denying motion to dismiss as allegations of significantly diminished job responsibilities were sufficient at pleading stage to be adverse employment action). Negative evaluations and reprimands can also be considered an adverse employment action if accompanied by an adverse result such as a demotion, diminution of wages or other tangible loss. Trachtenberg, 937 F. Supp. 2d at 469; Siddiqi v. New York City Health & Hosps. Corp., 572 F. Supp. 2d 353, 367 (S.D.N.Y. 2008) (citing Whaley v. City Univ. of N.Y., 555 F. Supp. 2d 381, 402 (S.D.N.Y. 2008)). However, as noted above, only adverse actions that occurred within the 300-day limitations period—after September 16, 2016—would be actionable.
A constructive discharge can constitute an adverse employment action when an employer intentionally makes the working conditions so intolerable that the employee's "resignation qualified as a fitting response." Pennsylvania State Police v. Suders, 542 U.S. 129, 139 (2004); see also Green v. Brennan, 136 S. Ct. 1769, 1777 (2016) ("A claim of constructive discharge . . . has two basic elements. A plaintiff must prove first that he was discriminated against by his employer to the point where a reasonable person in his position would have felt compelled to resign. [And] he must also show that he actually resigned." (internal citation omitted)). "The Supreme Court has described a hostile-environment constructive discharge claim as 'graver . . . than its lesser included component, hostile work environment.'" Trachtenberg, 937 F. Supp. 2d at 468 (quoting Suders, 542 U.S. at 149 (alteration in original)). Because Plaintiff has failed to allege facts sufficient to state a plausible claim of hostile work environment, she likewise has failed to state a claim of constructive discharge. Id.; see also Chenette v. Kenneth Cole Prods., Inc., 345 Fed. App'x. 615, 620 (2d Cir.2009) (summary order) (holding that, having failed on hostile work environment claim, plaintiff cannot succeed on constructive discharge claim, "which requires evidence of even more severe conditions" (quoting Divers v. Metropolitan Jewish Health Systems, 2009 WL 103703 at *19 (E.D.N.Y. Jan. 14, 2009)).
Plaintiff alleges that several weeks into the 2016-17 school year she was removed from working in the GEAR UP after-school program. Plaintiff does not state in the Complaint whether this resulted in a loss of per session income. If it did, it could constitute an actional adverse employment action. Plaintiff also does not state when exactly she was removed from the program. She only states it occurred several weeks into the school year. Thus, the Court is unable to ascertain whether it occurred after September 16, 2016. Plaintiff also alleges that in 2017 she began receiving "less-than-effective" evaluations and her first ever disciplinary letters. She does not state whether the negative evaluations or discipline led to any loss of income or other tangible loss. The alleged incidences of loss of per session income all occurred prior to September 16, 2016. Thus, the allegations are insufficient to infer the 2017 disciplinary letters and negative evaluations are actionable adverse employment actions. Plaintiff may be able to provide greater specificity in an amended pleading to establish actionable adverse actions.
Although it is a close call, Plaintiff has likewise failed to sufficiently plead causation. The fourth element of a Title VII or ADEA disparate treatment claim can be demonstrated in a variety of ways, such as through "the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge." Littlejohn, 795 F.3d at 312 (quoting Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir.2009)); see also Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015) ("A plaintiff must allege that the employer took adverse action against her at least in part for a discriminatory reason, and she may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.").
Here, with respect to the discipline and negative evaluations, Plaintiff does not point to any similarly situated teachers who were disciplined or given negative evaluations. Nor does she plead other facts giving rise to an inference that the discipline and negative evaluations were motivated by racial or caused by ageist animus. See Bagarozzi, 2019 WL 1454316 at *6 (holding that allegations that school issued letters to files and held disciplinary conferences exclusively and only with white teachers insufficient to demonstrate inference of discrimination, and finding allegations about loss of per session income insufficient as they did not include any relevant facts about similarly situated comparators); Trachtenberg, 937 F. Supp. 2d at 471 (holding that pleading name of person who was younger who was treated differently was sufficient to give rise to inference of discrimination, but just barely so (citing Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir.2008)). Plaintiff does allege that in the 2012-2013 school year a black teacher named Linda White, who co-taught a class with a Dominican teacher, received consistently negative ratings while her Dominican counterpart received positive ratings, leading to White's separation from employment. Plaintiff does not provide any context for the difference in ratings. She asserts more generally that "younger and/or Dominican teachers who were ineffectively rated were not asked to leave the school" and that "this pattern has continued since the 2012-13 school years, as Defendant Mercedes has replaced a significant percentage of older or black staff in favor of white and/or Dominican and/or younger teachers." (Compl. ¶¶ 14-15.)
Defendants argue that these allegations are too vague and conclusory to give rise to an inference of discrimination and cannot be considered to the extent they occurred outside the statute of limitations period. The Court agrees. Plaintiff provides no names of individuals who were similarly situated to her and only the most conclusory allegations regarding disparate treatment of black and/or older teachers and staff. All of the situations when younger and/or Dominican teachers were not asked to leave occurred outside the 300-day filing period and appear totally unrelated to what happened to Plaintiff in 2016 and 2017. And, no facts are provided—there is only the conclusory assertion that this occurred. Thus, these allegations are insufficient to give rise to an inference of discrimination with respect to the actions taken against Plaintiff. Sank v. City Univ. of New York, No. 10-CV-4975, 2011 WL 5120668, at *9 (S.D.N.Y. Oct. 28, 2011) (holding that allegations of past discrimination against women and gender-discriminatory faculty appointments were "unrelated" to alleged adverse employment action of the school re-allocating plaintiff's storage space). Plaintiff may be able to provide additional facts in an amended pleading that would sustain a cause of action.
For the above reasons, this Court respectfully recommend that the claims of disparate treatment discrimination under Title VII and the ADEA be dismissed without prejudice.
D. Sufficiency of Pleading - Retaliation
To state a prima facie retaliation claim under Title VII and the ADEA, a plaintiff must allege (1) participation in a protected activity, (2) defendants' knowledge of the protected activity, (3) an adverse employment action, and (4) a causal connection between the protected activity and the adverse employment action. Littlejohn, 795 F.3d at 315-16; see also Kessler v. Westchester County Dept. of Social Services, 461 F.3d 199, 205-06 (2d Cir. 2006). For purposes of the first and second elements, protected activity includes both formal and informal complaints of discrimination. See Summa v. Hofstra Univ., 708 F.3d 115, 126-27 (2d Cir. 2013); Matima v. Celli, 228 F.3d 68, 78-79 (2d Cir. 2000)). For purposes of the third element, the inquiry is whether the alleged adverse employment actions could have dissuaded a reasonable employee in the plaintiff's position from complaining about unlawful discrimination. Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006); Davis-Garett, 921 F.3d at 43. Negative evaluations, assignment of undesirable duties, reduction of class preparation periods, and assignments intended to impede the plaintiff from performing her job may qualify as adverse actions for purposes of a retaliation claim. Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 226 (2d Cir. 2006) (citing Morris v. Lindau, 196 F.3d 102, 110 (2d Cir.1999); see also Vega, 801 F.3d at 90 ("Context matters. The real social impact of work place behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of words used or the physical acts performed.") (quoting White, 548 U.S. at 69)). Finally, the fourth element—causation—can be proven indirectly by showing that the protected activity was followed closely by retaliatory treatment. See Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000). While there is no "bright line" for determining when temporal proximity is sufficient to plausibly allege causation, courts within the Second Circuit generally have held that "the temporal nexus between the protected activity and the adverse employment action must be three months or less to establish a causal connection." Jackson v. N.Y. State Office of Mental Health, No. 11-cv-7832 (GBD)(KNF), 2012 WL 3457961, at *11 (S.D.N.Y. Aug. 13, 2012) (collecting cases).
To the extent Defendants argue that Plaintiff has failed to plead a "but-for" connection between the alleged adverse acts and Plaintiff's protected activity, their argument is premature. "[T]he but-for causation standard does not alter the plaintiff's ability to demonstrate causation at the prima face stage . . . indirectly through temporal proximity." Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 845 (2d Cir. 2013).
Defendants concede that the filing of a charge with the Division and the EEOC is protected activity. They argue, however, that Plaintiff failed to allege any actions that would deter a reasonable person from filing or pursuing an administrative complaint. Plaintiff points out that after she filed her charge with the Division and the EEOC, Defendants placed a disciplinary letter in Plaintiff's file. In actuality, the Complaint states that nearly a year after she retired, Mercedes sent Plaintiff a letter "asking her to come to the school for a meeting regarding another allegation of corporal punishment and professional misconduct." (Compl. ¶ 48.)
To the extent Plaintiff states that Mercedes changed her schedule in retaliation for making a complaint about a violation of contractual rights under the union contract, this does not constitute protected activity for purposes of Title VII and the ADEA. See Vega, 801 F.3d at 90-91 (finding that retaliation must be based on complaint about or otherwise opposing unlawful discrimination).
Former employees can sue for retaliation insofar as they are complaining of retaliation that impinges on future employment prospects or otherwise has a nexus to employment. See Azkour v. Haouzi, No. 11 CIV. 5780 RJS KNF, 2013 WL 3972462, at *2 (S.D.N.Y. Aug. 1, 2013); see also Rivas v. New York State Lottery, 745 F. App'x 192, 194 (2d Cir. 2018) (summary order) (recognizing that a former employee may state a claim for retaliation for post-employment conduct that impacts future employment prospects); Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997)) ("[P]laintiffs may be able to state a claim for retaliation, even though they are no longer employed by the defendant company, if for example, the company 'blacklists' the former employee, wrongfully refuses to write a recommendation to prospective employers, or sullies the plaintiff's reputation." (internal citations omitted)).
However, as Defendants correctly argue, Plaintiff was retired as a teacher and the letter, which is alleged to have requested a meeting with Plaintiff, cannot be deemed to have impinged on Plaintiff's future employment prospects. There are no allegations that anything was done to Plaintiff in terms of recommendations to future employers, post-employment benefits, or otherwise as a result of the letter. Furthermore, the letter, sent nearly a year after Plaintiff retired and the filing of the charge, is too remote in time for the Court to infer causation. As pled, the complaint fails to state a claim for unlawful retaliation. Therefore, this Court recommends that this claim be dismissed. Given that a Plaintiff is normally given a chance to replead, this Court recommends that Plaintiff be given a chance to replead this claim.
2. Section 1981 and 1983 Claims
Plaintiff brings claims of discrimination based on race under 42 U.S.C. §§ 1981 and 1983. Defendants seek dismissal of the Section 1981 claim on the ground that a cause of action against state actors under this statute is unavailable as a matter of law. Section 1981 "outlaws discrimination with respect to the enjoyment of benefits, privileges, terms, and conditions of a contractual relationship, such as employment." Patterson v. County of Oneida, 375 F.3d 206, 224 (2d Cir. 2004) (citation omitted); 42 U.S.C. § 1981(a). Section 1983 provides a means of redress for constitutional violations by persons acting under color of state law. In relevant part, the statute states:
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .42 U.S.C. § 1983. Section 1983 does not create a substantive right to recover; a plaintiff must establish the deprivation of a separate federal right. See Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999). Thus, to the extent a plaintiff seeks redress against state actors for violations of Section 1981, the claim must be brought pursuant to Section 1983. Jett v. Dallas Independent School District, 491 U.S. 701, 735 (1989) (explaining that Section 1983 "provides the exclusive federal damages remedy for the violation of the rights guaranteed by Section 1981 when the claim is pressed against a state actor"). Section 1981 does not provide a separate private right of action against state actors. Duplan, 888 F.3d at 620-21. Indeed, "[e]ven if a plaintiff sues a person who is a state actor in her individual capacity, she must employee § 1983." Murray, slip op. at 26 (emphasis in original); see also Whaley, 555 F. Supp. 2d at 400-01 ("The holding in Jett has been interpreted to encompass not only governmental entities, but also individuals sued in their individual capacities who are 'state actors.'" (citations omitted)). Plaintiff does not contest this argument. Therefore, this Court recommends that Plaintiff's claims under Section 1981 be dismissed with prejudice.
Defendants request dismissal of Plaintiff's Section 1983 claims for failure to state a claim. When a municipality is sued under Section 1983, the plaintiff must prove that the challenged acts were performed pursuant to a municipal policy or custom. Monell v. Dep't of Social Services, 436 U.S. 658, 690, 694 (1978). The plaintiff can do so by showing that "a discriminatory practice of municipal officials was so persistent or widespread as to constitute a custom or usage with the force of law, or that a discriminatory practice of subordinate employees was so manifest as to imply the constructive acquiescence of senior policy-making officials." Patterson, 375 F.3d at 226 (citation and internal quotation marks omitted). Conclusory assertions of a custom or policy unsupported by facts are insufficient to state a claim. Santos v. New York City, 847 F. Supp. 2d 573, 576-77 (S.D.N.Y.2012).
Here, Plaintiff does not assert that the DOE had a policy of discrimination, harassment, and retaliation. Rather, her claim hinges on Defendant Mercedes, as principal, having final policymaking authority as to the terms and conditions of her employment at her school. "'[I]dentification of policymaking officials is a question of state law.'" Dressler v. New York City Dep't of Educ., No. 10 Civ. 3760(JPO), 2012 WL 1038600, at *17 (S.D.N.Y. Mar. 29, 2012) (alteration in original) (quoting St. Louis v. Praprotnik, 485 U.S. 112, 123 (1998)). Under New York law, principals are the "[s]ubject to the regulations of the chancellor." N.Y. Educ. Law § 2590-I; see also N.Y. Educ. Law § 2590 (defining §§ 2590-2590-V as applying only to the school district of New York City). Further, in New York City, principals do not have final policymaking authority over employment decisions concerning teachers in their school as a matter of law. See Dressler, 2012 WL 1038600 at *17-18 (S.D.N.Y.2012) (recognizing that under New York's education law, principals are not final decisionmakers as to teacher evaluations or any appealable school-level decision subject to the school chancellor's regulations); Shapiro v. New York City Dep't of Educ., 561 F. Supp. 2d 413, 420-21 (S.D.N.Y.2008) (dismissing ADA claims against defendant school district based on the principal's conduct because "under New York law, New York City school principals do not have final policy making authority over employment decision[s] concerning teachers in their schools"); see also Hurdle v. Bd. of Ed. of the City of New York, 113 Fed. App'x. 423, 425-26 (2d Cir.2004) (summary order) (holding that superintendent who made decision to transfer plaintiff was not "final" policymaker because New York Education law § 2590-j(8) limited the superintendent's authority to transfer), cert. denied, 544 U.S. 921 (2005). The cases Plaintiff cites are distinguishable because either they did not involve a New York City school or because they did not involve a New York City school principal alone, and thus involve different facts and different law regarding decision making authority. Cf. Giscombe v. New York City Dep't of Educ., No. 12 CIV. 464 LTS KNF, 2013 WL 829127, at *3 (S.D.N.Y. Feb. 28, 2013) (involving the actions of both the school chancellor and a principal); Williams v. Bd. of Educ.-City of Buffalo, No. 07-CV-698C, 2008 WL 2946003 (W.D.N.Y. July 29, 2008) (involving the City of Buffalo).
Accordingly, this Court recommends the dismissal of the Section 1983 claims with prejudice. Because it is unnecessary, the Court does not address Defendant's statute of limitations argument as to Plaintiff's Section 1983 claims.
3. State and City Human Rights Law Claims
Defendants make several arguments supporting dismissal of Plaintiff's NYHRL and NYCHRL claims. Their principle argument is that Plaintiff elected her remedies by proceeding before the Division and choosing not to appeal the Division's finding of no probable cause. Under both the NYSHRL and the NYCHRL, an individual who files a complaint with the Division is jurisdictionally barred from filing a lawsuit in state or federal court for the same claims. See N.Y. Exec. Law § 297(9); N.Y.C. Admin. Code § 8-502(a).
Courts recognize two primary exceptions to the election of remedies doctrine, neither of which apply in this case. See York v. Ass'n of the Bar, 286 F.3d 122, 127 n.2 (2d Cir. 2002); Levi v. RSM McGladrey, Inc., No. 12-CV-8787, 2014 WL 4809942, at *3 n.4 (S.D.N.Y. Sept. 24, 2014) (holding that the two exceptions to the election of remedies rule do not apply when an administrative complaint is filed directly with the Division and thereafter dismissed for lack of probable cause). "First, where a complaint filed with the administrative agency is dismissed for administrative convenience rather than on the merits, a plaintiff is not barred from filing a lawsuit in federal court." Williams v. City of New York, 916 F. Supp. 2d 517, 522-23 (S.D.N.Y. 2013) (citation omitted); see also York, 286 F.3d at 127 n.2. The second exception "applies when a claim is filed directly with the EEOC rather than with the [Division], and is only thereafter filed with the [Division] by the EEOC in accordance with Title VII requirements that all complaints filed with the EEOC be referred to the local agency." Williams v. City, 916 F. Supp. 2d at 522-23 (citation omitted); see also York, 286 F.3d at 127 n.2.
Plaintiff does not contest that she elected her remedies, and in the April 24, 2019 conference before this Court, Plaintiff conceded that her state and city law claims are barred. Accordingly, there is no need to address all of Defendants' arguments for dismissal of these claims, as they must be dismissed pursuant to the election of remedies rule.
CONCLUSION
For the reasons set forth above, this Court respectfully recommends that Defendants' motion to dismiss be granted as follows. The Court recommends that Plaintiff's claims under the NYHRL and the NYCHRL, as well as her claims under Sections 1981 and 1983, be dismissed with prejudice. The Court recommends that Plaintiff's claims under Title VII and the ADEA be dismissed without prejudice and Plaintiff be permitted to file an amended pleading by no later than June 14, 2019.
Respectfully submitted, Date: May 8, 2019
New York, New York
/s/_________
KATHARINE H. PARKER
United States Magistrate Judge
NOTICE
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections to the Report and Recommendation, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed. R. Civ. P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). If any party files written objections to this Report and Recommendation, the opposing party may respond to the objections within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Katherine P. Failla at the United States Courthouse, 40 Foley Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Failla. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).