Opinion
19-CV-04372 (GBD) (KHP)
12-10-2020
JAMES MAURO, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION, MARIE GUILLAUME, PRINCIPAL OF HIGH SCHOOL FOR ENERGY AND TECHNOLOGY, Defendants.
REPORT & RECOMMENDATION
Katharine H. Parker, United States Magistrate Judge
TO: THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE
Plaintiff James Mauro brings this action against the New York City Department of Education and Marie Guillaume, the principal of his former employer, the High School for Energy and Technology. He alleges that he was discriminated against because of his race in violation of: Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (“Title VII”); the New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297 (“NYSHRL”); and the New York City Human Rights Law, N.Y. City Admin. Code § 8-101 to 131 (“NYCHRL”).
Defendants moved to dismiss the initial complaint on November 15, 2019. After several amendments to the pleadings, Defendants have now moved to dismiss the Second Amended Complaints (“SAC”). For the reasons that follow, I again respectfully recommend that Defendants' motion be granted in its entirety.
FACTUAL ALLEGATIONS IN THE COMPLAINT
The statement of facts comes from the allegations in the Complaint, which includes Plaintiff's New York State Division of Human Rights Verified Complaint, (ECF No. 2), the SAC (ECF No. 49), which includes Plaintiff's Addendum (ECF No. 49-1). The Court also includes facts pleaded in Plaintiff's opposition to the Motion to Dismiss (ECF No. 53) as is within its discretion. See Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013). The facts are assumed to be true for purposes of the instant motion.
Plaintiff James Mauro, a white male, was hired in August 2016, following a demonstration he gave at a job fair for new teachers and recent graduates, by Marie Guillaume, an African-American or Haitian female, who was and remains the principal of the High School for Energy and Technology. The High School for Energy and Technology (“HSET”) is in the Bronx and has “demographics of 70% Hispanic and roughly 30% African-American.” (Compl. at 9, ¶ 4, ECF No. 2.) Plaintiff, who was certified to teach Social Studies for students in grades seven through twelve, was assigned to teach “Economics/Participation in Government” to ninth and tenth grade students at HSET. Plaintiff began the 2016-2017 school year as a probationary teacher. (Id. at 15-16.)
During the 2016-2017 school year, Plaintiff received two letters to his file for “soft lockdown violations” on March 13 and March 28, 2017. (James Mauro Second Amended Addendum to Federal Complaint ¶ 11, ECF No. 49-1 (hereinafter “SAC Addendum”).) Plaintiff does not describe what a soft lockdown is, or how he violated it, only alleging that “soft lockdown drills were practice drills and are completely arbitrary, ” and that the minority teachers on his floor did not receive similar violations “even though they were in the same hallway and had the same door frame.” (Id.)
After these two violations, Plaintiff was subject to two observations, in April and May of 2017. (Id. ¶ 14.) While no allegations are provided regarding the April observation, Plaintiff received a 1.63 rating (ineffective) in May 2017. A rating of at least 1.74 rating (developing) was required under the Danielson rubric used for evaluation to be in good standing. (Id.) Plaintiff appears to disagree with the rating, indicating that in December 2016 he had received a rating of developing. (Id. ¶ 15.)
In July 2017, as a result of the observations and two letters to file, Plaintiff learned that the Board of Education of the City School District of the City of New York (“BOE”) (sued as the New York City Department of Education) was discontinuing his probationary employment. (Id. ¶ 2.) Plaintiff appealed the BOE's decision. On March 16, 2018, an appeal hearing regarding his termination was held. (Id. ¶ 4.) At the hearing, Plaintiff was accompanied by his advocate to discuss whether he was properly assigned ninth and tenth grade students for “Economics/Participation in Government” and whether his termination was proper. (See id.; see also Compl. at 15). During the hearing, Guillaume stated: “[a]nd I understand you're looking at trying to keep your license and so forth, and I believe someone pointed out very well, this was not a good fit. Okay!” (Compl. at 15.). When the hearing was finished, the three-member panel recommended that Plaintiff not be discontinued. (SAC Addendum ¶ 4.) However, the BOE rejected the panel's recommendation and reaffirmed Plaintiff's discontinuance. (Id.) Plaintiff provides no allegations regarding the BOE's stated reasons for rejecting the recommendation.
To support his claims of discrimination, Plaintiff points to three colleagues he alleges to be similarly situated, two of whom were not subject to the same adverse conduct as Plaintiff. First he points to Zebo Pirmukhamedova, an Uzbek/Asian female, who was a fellow first-year special education probationary teacher at HSET. (Id. ¶ 9.) Zebo received effective ratings during her observations, and instead of being discontinued, was allowed to enter into the transfer portal and transferred to a school closer to her home without having a problem code placed on her record. Second, he points to Marquette Highsmith, an African-American female, who was a first year probationary teacher. Plaintiff does not provide any information regarding observations, letters, or ratings for Ms. Highsmith, who is alleged to still be employed at HSET. (Id. ¶ 10.) Finally, he points to Brian Basso, who is similarly situated to Plaintiff. Mr. Basso is a white, male, former employee of HSET who was discontinued as a result of receiving ineffective ratings and receiving the same two letters to file related to the soft lockdown violations. (Id. ¶¶ 9, 11.) Plaintiff provides no other allegations regarding Mr. Basso or his attempts to enter into the transfer portal as Ms. Pirmukhamedova did. Finally, Plaintiff also states in a conclusory fashion that white teachers were subject to more scrutiny and disciplinary actions than teachers of color.
PROCEDURAL HISTORY
Prior to filing this action, on July 5, 2018, Plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission (“EEOC”) and asserted substantially similar claims as asserted here for Title VII for race discrimination, hostile work environment, and retaliation against the BOE (sued as the New York City Department of Education) and Marie Guillaume. (See Ex. A to Declaration of Angela M. Wanslow, ECF No. 51-1.) Plaintiff also asserted claims under the NYSHRL and NYCHRL for discrimination, hostile work environment, and retaliation against the BOE and Marie Guillaume. On April 25, 2019, Plaintiff received a Notice of Right to Sue (dated April 16, 2019) from the EEOC.
Plaintiff filed his initial complaint in federal court on May 14, 2019. (Compl., ECF No. 2.) After conferences, the Court provided Plaintiff with an opportunity to amend the Complaint, which Plaintiff opted not to do. On November 15, 2019, the Defendants moved to dismiss the Complaint in its entirety. (ECF No. 23.) Plaintiff initially failed to oppose the motion, but after the Court ordered Plaintiff to file a letter indicating his opposition to the motion, or lack thereof, Plaintiff opposed the motion. On April 29, 2020, I recommended granting the motion in its entirety in a Report and Recommendation (the “Report”). (ECF No. 32.) In lieu of an objection to the Report, Plaintiff filed a First Amended Complaint attempting to address the shortcomings of his initial pleadings. The Honorable George B. Daniels adopted the Report on July 9, 2020 and granted the motion to dismiss the Complaint. (ECF No. 44.)
On July 16, 2020, the Court held a conference at which Plaintiff was given one last opportunity to file a pleading with sufficient facts to support his claims against the Defendants. On August 17, 2020, Plaintiff timely filed the SAC. (ECF No. 49.) On September 9, 2017, Defendants again moved to dismiss the claims. (ECF No. 50.)
LEGAL STANDARD FOR MOTION TO DISMISS
When considering a motion to dismiss under Federal Rule of Civil Procedure 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. See, e.g., Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam); Littlejohn v. City of New York, 795 F.3d 297, 306-07 (2d Cir. 2015). To survive a motion to dismiss, the complaint must contain “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 a “formulaic recitation of the elements of a cause of action . . . .” Id. (internal citation and quotation marks omitted). “[N]aked assertions devoid of further factual enhancement” are insufficient to survive a motion to dismiss. Id. (internal citation and quotation marks omitted). 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 Second Circuit further elaborated on the “plausibility standard” in the context of claims for unlawful discrimination under Title VII. 795 F.3d 297. Specifically, it held that the facts asserted in a complaint alleging discrimination 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, in Littlejohn, the Second Circuit explained that it is not necessary at the pleading stage for a plaintiff to provide sufficient 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, a 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 to “give ‘plausible support to the reduced requirements'” of a prima facie case under Littlejohn and McDonnell. See Anderson v. City of New York, Health & Hosp. Corp., No. 16-cv-1051 (GBD) (KHP), 2017 WL 9538862, at *8 (S.D.N.Y. Jan. 19, 2017), adopted by, 2017 WL 3251603 (S.D.N.Y. July 31, 2017).
The above standards apply equally to pro se litigants. See Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011); Hobson v. Fischer, No. 10-cv-5512 (SAS), 2011 WL 891314, at *3 (S.D.N.Y. Mar. 14, 2011). However, courts must construe a pro se plaintiff's complaint liberally and interpret it as raising the strongest arguments it suggests. Hill, 657 F.3d at 122 (noting that in “review of the of the sufficiency of a pro se complaint . . . [courts] are constrained to conduct [their] examination with ‘special solicitude'”) (citing Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); see also Tracy v. Freshwater, 623 F.3d 90, 103 (2d Cir. 2010) (“The underlying justification for the solicitude ordinarily granted to pro se litigants is that it is necessary to prevent such parties, who generally lack legal training and experience, from inadvertently forfeiting important rights.”).
Finally, in ruling on Defendant's motion 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 incorporated by reference or are integral to and solely relied upon by the complaint.” Littlejohn, 795 F.3d at 305 n.3 (internal quotation marks, alterations, and citation omitted). Additionally, “[a] district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion.” Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013).
DISCUSSION
The Second Amended Complaint raises the same claims as the original Complaint under Title VII, the NYSHRL, and the NYCHRL with little additional facts to support them. As a threshold matter, although the NYSHRL and the NYCHRL permit claims against individuals, Title VII does not. See McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 157 (2d Cir. 2017). Therefore, Plaintiff's Title VII claims against Marie Guillaume, as an individual, should be dismissed. Furthermore, Plaintiff failed to comply with New York State's Notice of Claim requirement in bringing suit against the BOE. (See Report at 6-8.) As noted in this Court's prior opinion, “[c]ompliance with Section 3813(1) is a prerequisite for a suit naming a school district or its officers, and a plaintiff's failure to plead compliance with New York's notice of claim requirements mandates dismissal.” Lewinter v. N.Y.C. Dep't of Educ., No. 13-cv-3253 (NSR), 2010 WL 2746334, at *2 (S.D.N.Y. July 9, 2010); see also Williams v. N.Y.C. Dep't of Educ., No. 17-cv-1996 (AJN), 2018 WL 4735713, at *7 (S.D.N.Y. Sep. 28, 2018) (holding a pro se litigant's failure to comply with the notice of claim requirement mandated dismissal of his NYSHRL and NYCHRL claims). Plaintiff alleges no additional facts in the SAC showing that he complied with the notice of claims requirement. As such, Plaintiff's NYHRL and NYCHRL claims against BOE should be dismissed. Because the notice of claim provision “does not . . . apply to school principals, who are not officers within the scope of § 3813(1), ” however, I address the state and city law claims against Guillaume below. Williams, 2018 WL 4735713 at *7.
Plaintiff's claims against the BOE under state and city law are barred for the additional reason that Plaintiff failed to file this lawsuit within the one-year statute of limitations after learning that his employment was being terminated. N.Y. Educ. Law § 3813(2-b); Wade v. New York City Dep't of Educ., 667 Fed.Appx. 311, 312 (2d Cir. 2016); Garrido v. N.Y.C. Dep't of Educ., No. 16-cv-9496, 2018 WL 1664793, at *8 (S.D.N.Y. Mar. 15, 2018).
1. Discrimination Claims
Turning next to Plaintiff's discrimination claims, as before, Plaintiff has failed to state a claim for discrimination based on race. In order for a plaintiff to establish a claim of racial discrimination under federal and state law, he must show as a prima facie matter that: “(1) he belonged to a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003); accord Littlejohn, 795 F.3d at 311; see also McGill v. Univ. of Rochester, 600 Fed.Appx. 789, 790 (2d Cir. 2015) (applying the same standard for analyzing discrimination claims under both Title VII and the NYSHRL). To plead a claim of discrimination under the NYCHRL, a plaintiff must plead facts showing that he was “treated less well than other employees because of” his race or other protected characteristic. Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 36 (1st Dep't 2009); accord Belton v. City of New York, No. 12-cv-6346 (JPO), 2014 WL 4798919, at *7 n.6 (S.D.N.Y. Sept. 26, 2014), aff'd, 629 Fed.Appx. 50 (2d Cir. 2015).
Plaintiff's Title VII and NYSHRL claims again falter on the last element of his prima facie case due to Plaintiff's failure to allege facts suggesting a plausible inference of discrimination. Plaintiff tries to establish this inference in two ways. First, Plaintiff states the principal told him was “not a good fit, ” which he argues, in a conclusory manner, is coded racial verbiage. (See Pl.'s Opp'n at 3, ECF No. 56.) He further states that a colleague of his, Greg Gibson, an African-American male, told the principal that Plaintiff was not a “good fit” at HSET. (SAC Addendum ¶ 7.) That Gibson made the statement and that Guillaume repeated it does not provide any basis for the Court to conclude the statement was coded racism. The statement is race neutral and neither the race of the speakers nor the context of the statements render them suspect. Courts routinely dismiss discrimination claims with similarly vague and facially neutral statements on the basis that the statements do not support an inference of discrimination. See, e.g., LeeHim v. New York City Dep't of Educ., No. 17-cv-3838 (PAE), 2017 WL 5634128, at *7 (S.D.N.Y. Nov. 21, 2017) (dismissing claim of discrimination because plaintiff failed to provide context for why the words might be codes for racial stereotypes; collecting cases); Delgado v. Triborough Bridge and Tunnel Authority, 485 F.Supp.2d 453, 463 (S.D.N.Y. 2007) (“[Plaintiff] must plead circumstances leading to a permissible inference of racial discrimination including: ethnically degrading terms, invidious comments about [his] protected group, or sufficient factual assertions that employees not in [his] protected group were favored.”); Perry v. Sony Music, 462 F.Supp.2d 518, 520 (S.D.N.Y. 2006) (“Other than [the] conclusory assertion [that plaintiff felt discriminated against because he is black], [plaintiff] provides no further detail manifesting any form of racial animus, discriminatory words, prior incidents or other indications that his race played a role in Sony's decision to dismiss him.”).
In addition to the above-discussed statement, Plaintiff attempts to support his claim by pointing to comparators who allegedly were treated better than he was. Despite adding several new allegations regarding the comparators, Plaintiff's allegations are still woefully short of supporting an inference of discrimination. See Barbosa v. Continuum Health Partners, Inc., 716 F.Supp.2d 210, 217 (S.D.N.Y. 2010) (citing Shumway v. United Parcel Service, 118 F.3d 60, 63 (2d Cir. 1997)). When “considering whether a plaintiff has raised an inference of discrimination by showing that [he] was subjected to disparate treatment . . . the plaintiff must show [he] was similarly situated in all material respects to the individuals with whom [he] seeks to compare [himself].” Malcom v. Honeove Falls Lima Cent. Sch. Dist., 483 Fed.Appx. 660, 662 (2d Cir. 2012) (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)). To be similarly situated in “all material respects, ” a plaintiff must show that his “co-employees were subject to the same performance evaluation and discipline standards” and that “the conduct for which the employer imposed discipline was of comparable seriousness.” Graham, 230 F.3d at 39-40; accord Varughese v. Mount Sinai Med. Ctr., No. 12-cv-8812 (CM) (JCF), 2015 WL 1499618, at *49 (S.D.N.Y. Mar. 27, 2015), aff'd, 693 Fed.Appx. 41 (2d Cir. 2017).
Here, Plaintiff points to two other teachers: Zebo Pirmukhamedova and Marquette Highsmith. Neither of these teachers were similarly situated to Plaintiff for purposes of a discrimination claim. While both teachers were first-year probationary teachers and both teachers were subject to the same Danielson grading rubric as Plaintiff (see SAC Addendum ¶ 15), the materially important similarities end there. Plaintiff makes no allegations that either teacher received ineffective otherwise negative ratings or letters to their file. In fact, Plaintiff alleges that Ms. Pirmukhamedova likely had effective ratings, distinguishing her from Plaintiff. Plaintiff makes no allegations as to Ms. Highsmith's ratings other than to state she is still employed at HSET. And, Plaintiff makes no allegations that either teacher was involved in the same conduct that Plaintiff and Brian Basso were regarding the soft lockdown that led to Plaintiff and Mr. Basso's receipt of two letters to their file. Finally, while Plaintiff points to Ms. Pirmukhamedova's ability to transfer out of the school via a portal system, Plaintiff does not assert that he attempted to also use that system and was denied its benefits. In the absence of allegations that either Ms. Pirmukhamedova or Ms. Highsmith were similarly situated in those material respects, Plaintiff has failed to show that he was similarly situated to those teachers, and thus, has failed to show disparate treatment that would raise an inference of discrimination.
Construing Plaintiff's pleadings most liberally, Plaintiff points to three other teachers who he appears to say were treated better than him. Those three teachers are “Virginia Williams (African American), Greg Gibson (African American), and Ms. Marcelon (Filipino-American).” (SAC ¶ 11.) Plaintiff argues that these three teachers, who share a hall with him, and “had the same door frame, ” were not cited for the soft lockdown for which he and Mr. Basso were cited. (Id.) However, Plaintiff does not explain the significance of the “door frame, ” or provide any other information regarding these teachers and how they are similarly situated. For example, it is unclear whether any of these teachers were probationary teachers like Plaintiff or whether they were engaged in the exact same conduct as Plaintiff on both occasions that he received a letter regarding the soft lockdowns. Thus, these allegations do not support an inference of discrimination for purposes of Title VII or the NYSHRL.
The new allegations likewise fail to establish that Plaintiff was treated less well than non-white teachers because of his race-the standard required to state a claim under the NYCHRL-because the facts pleaded do not establish that any of the comparators were similarly situated and treated better. Merely pointing to another white colleague (Mr. Basso) who also was terminated and stating in a conclusory fashion that African-American teachers were not similarly scrutinized or terminated likewise does not satisfy the pleading standard necessary to state a claim. The same is true of his conclusory assertion that he was assigned the worst behaved students.
For these reasons, even construed liberally, Plaintiff fails to state plausible claims for racial discrimination under federal, state. and local law. Therefore, Defendants' motion to dismiss Plaintiff's race discrimination claims should be granted.
2. Hostile Work Environment Claims
To the extent that Plaintiff's SAC can be construed as alleging a claim for hostile work environment harassment based on race, under either Title VII, NYSHRL, or NYCHRL, his claim fails again for the same reasons stated in this Court's prior Report and Recommendation. The lowest of the three thresholds is the NYCHRL, which requires that harassment in the workplace need not be “severe or pervasive” but still must be more than “petty slights and trivial inconveniences.” Williams, 872 N.Y.S.2d at 36. Even under this low standard, Plaintiff has failed to meet his burden to plead a plausible claim of harassment.
The only new allegation relevant to this claim is that Mr. Gibson, an African-American teacher, told Defendant Guillaume that Plaintiff was not a “good fit” prior to Plaintiff's appeal hearing. This new allegation does not move the needle to raise a plausible inference of a racially hostile work environment under the NYCHRL, let alone under Title VII and the NYHRL. (Report at 11-14.) Even taking into account that the first “good fit” statement now allegedly came from Mr. Gibson (not Defendant Guillaume), and was made during Plaintiff's employment (not after), Plaintiff alleges the statement was made in the wake of a “classroom management issue.” (SAC Addendum ¶ 8.) In making this allegation, Plaintiff himself provides the more plausible, non-discriminatory reason as to why he suffered adverse work actions-he had issues with managing his classroom. There is nothing about this statement that supports an inference that Plaintiff was subjected to race stereotyping or treated less well than non-white probationary teachers with similar performance issues. Thus, he fails to state a plausible claim of hostile work environment under federal, state and local law and these claims should be dismissed.
Furthermore, Plaintiff again failed to oppose Defendants' motion to dismiss hostile work environment claims, so to the extent the claims are not dismissed for failure to state a claim, Plaintiff should be deemed to have abandoned the claims, which also warrants their dismissal. Hanigu v. Yorktown Central School Dist., 384 F.Supp.2d 710, 723 (S.D.N.Y. 2005).
3. Retaliation Claims
To the extent Plaintiff's SAC can be read to claim retaliation, the pleading again fails as a matter of law to state a claim, and should nonetheless also be deemed abandoned. No new factual allegations have been made regarding retaliation that gives rise to a cognizable claim. The only protected activity Plaintiff engaged in was the filing of an EEOC charge after he was discharged from employment. There is no conduct that could be construed as retaliatory after the charge was filed. Further, and in any event, Plaintiff did not oppose Defendants' motion to dismiss his retaliation claims and therefore abandoned them. They must be dismissed for this reason as well. Hanigu, 384 F.Supp.2d at 723.
4. Claims Against Principal Marie Guillaume
As noted above, Title VII does not provide for individual liability. Therefore, the Title VII claims must be dismissed against Guillaume for this reason. See, e.g., McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 157 (2d Cir. 2017).
Unlike under federal law, individuals can be found liable under both the NYHRL and the NYCHRL for aiding and abetting conduct that violates the law. N.Y. Exec. Law § 296(1), (6); N.Y.C. Admin Code § 8-107(6). The standard for asserting an aiding and abetting claim under both statutes is the same because the “language of the two laws is virtually identical.” See e.g., Malena v. Victoria's Secret Direct, LLC, 886 F.Supp.2d 349, 367 (S.D.N.Y. 2012) (internal quotation marks and citation omitted). Yet, even when analyzing the allegations in a light most favorable to Plaintiff and interpreting the SAC to assert the strongest arguments it suggests, there are insufficient allegations to state a claim for aiding and abetting liability under the NYSHRL and the NYCHRL against Guillaume because the facts are insufficient to support any claim under these laws for the reasons discussed above. Therefore, Plaintiff's NYSHRL and NYCHRL claims against Marie Guillaume must be dismissed.
5. Leave to Amend
Courts generally do not dismiss a pro se complaint “without granting leave to amend at least once when a liberal reading of the complaint give any indication that a valid claim might be stated.” Shabbazz v. Bezio, 511 F. App'x. 28, 31 (2d Cir. 2013) (quoting Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009)). Additionally, the Second Circuit embodies the liberal standard in allowing a plaintiff to amend his complaint so that he can have the opportunity to try his claim on the merits. See Loreley Financing (Jersey) No. 3 Ltd. v. Wells Fargo Securities, LLC, 797 F.3d 160, 190 (2d Cir. 2014) (“As we have explained, the permissive standard of Rule 15 is consistent with our strong preference for resolving disputes on the merits”) (internal citations and quotations omitted). However, courts in this Circuit have denied a party the opportunity to amend when the request is made “in a cursory sentence on the last page of an opposition to a motion to dismiss, without any justification or an accompanying suggested amended pleading.” In re Rockwell Med., Inc. Sec. Litig., No. 16-cv-1691 (RJS), 2018 WL 1725553, at *16 (S.D.N.Y. Mar. 30, 2018) (collecting Second Circuit decisions).
Here, the Court has already given Plaintiff leave to amend his pleadings after one full round of briefing on Defendants' first motion to dismiss. Plaintiff also had the opportunity during a conference to hear directly form Defendants' counsel, prior to his filing of the SAC, the deficiencies Defendants believed still existed in the pleadings. However, the SAC did not cure the deficiencies. Therefore, dismissal with prejudice is warranted. Further, the state and city law claims against the BOE cannot be revived because of Plaintiff's failure to timely file a notice of claim and no claim under Title VII can lie against Guillaume.
CONCLUSION
For the reasons set forth above, I respectfully recommend that Defendants' motion to dismiss the SAC be granted in its entirety with prejudice and that Plaintiff's request for leave to amend be denied.
The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to Plaintiff.
NOTICE
Plaintiff shall have seventeen days, and Defendants shall have fourteen days, from service of this Report and Recommendation to file written objections 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)). A party may respond to another party's objections after being served with a copy. Fed.R.Civ.P. 72(b)(2).
Plaintiff shall have seventeen days to serve and file any response. Defendants shall have fourteen days to serve and file any response. Any objections and any responses to such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and served on the other 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 Daniels. The failure to file timely objections shall 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).