Opinion
Civil Action 22 Civ. 3860 (VEC) (SLC)
11-09-2023
ELSIE NNEBE, Plaintiff, v. CITY OF NEW YORK, NEW YORK CITY DEPARTMENT OF EDUCATION, REIDA BARRY-GRANT, LISETTE OLIVO, and JOHN WERNER, Defendants.
REPORT AND RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE VALERIE E. CAPRONI, United States District Judge:
I. INTRODUCTION
Pro se Plaintiff Elsie Nnebe (“Nnebe”), a tenured special education teacher employed by the New York City Department of Education (“DOE”), asserts discrimination, retaliation, and hostile work environment claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (“ADEA”), 42 U.S.C. § 1981 (“Section 1981”), New York State Human Rights Law, N.Y. Exec. L. § 290 et seq. (“NYSHRL”), and New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (“NYCHRL”), against Defendants DOE, the City of New York (the “City”), Reida Barry-Grant (“Barry-Grant”), Lisette Olivo (“Olivo,” with the DOE, City, and Barry-Grant, the “City Defendants”), and John Werner (“Werner,” with the City Defendants, “Defendants”). (ECF No. 44 (the “Amended Complaint”)). Barry-Grant and Olivo were the Principal and Assistant Principal, respectively, at the school where Nnebe was formerly assigned, and Werner is a DOE teacher who formerly served as Nnebe's union representative. (Id. at 1). Nnebe's claims arise from Defendants' involvement in the DOE's filing of disciplinary charges against her pursuant to New York Education Law Section 3020-a (“3020-a”), for alleged misconduct relating to her supervision of students (the “3020-a Charges”). (Id. at 5, 8-18).
Section 3020-a “governs the procedure of disciplinary proceedings brought against tenured teachers.” Verne v. N.Y.C. Dep't of Educ., No. 21 Civ. 5427 (JPC), 2022 WL 4626533, at *2 n.2 (S.D.N.Y. Sept. 30, 2022) (citing N.Y. Educ. L. § 3020-a).
Defendants have moved to dismiss the Amended Complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. (ECF Nos. 48 (the “City Defendants' Motion”); 54 (“Werner's Motion,” with the City Defendants' Motion, the “Motions”)). Nnebe has opposed the Motions and, in the alternative, requested “leave to file a second amended complaint to address any deficiencies identified by the Court” (the “Request”). (ECF No. 59 at 10 (the “Opposition”)).
For the reasons set forth below, the Court respectfully recommends that (i) the City Defendants' Motion be GRANTED IN PART and DENIED IN PART, (ii) Werner's Motion be GRANTED, and (iii) Nnebe's Request be DENIED.
II. BACKGROUND
The following facts are drawn from the Amended Complaint, the documents attached thereto, the Opposition, and an affidavit Nnebe filed with the Opposition (ECF No. 58 (the “Affidavit”)), and are presumed true for purposes of deciding the Motions. See Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (“A district court deciding a motion to dismiss may consider factual allegations made by a pro se party in [her] papers opposing the motion.”); Roth v. Jennings, 489 F.3d 499, 509-510 (2d Cir. 2007); Rothbein v. City of New York, No. 18 Civ. 5106 (VEC), 2019 WL 977878, at *1 (S.D.N.Y. Feb. 28, 2019).The Court has also considered the decision of the hearing officer who presided over the 3020-a Charges (ECF No. 49-1 (the “3020-a Decision”))-which was issued after Nnebe filed the original Complaint and provides context for the 3020-a Charges-because it is integral to the Amended Complaint. See Severin v. N.Y.C. Dep't of Educ., No. 19 Civ. 775 (MKV) (RWL), 2021 WL 1226995, at *4 (S.D.N.Y. Mar. 31, 2021) (on Rule 12(c) motion for judgment on the pleadings, considering, inter alia, “the decisions . . . of Plaintiff's Section 3020-a proceedings . . . because they are referenced in the Complaint, Plaintiff relied on and had knowledge of them in bringing this action, or they are matters of which judicial notice may be taken”); Heller v. Bedford Cent. Sch. Dist., 144 F.Supp.3d 596, 605 (S.D.N.Y. 2015) (in deciding motion to dismiss under Rule 12(b)(6), considering 3020-a hearing officer's decision that was “integral to the complaint and incorporated by reference therein”), aff'd, 665 Fed.Appx. 49 (2d Cir. 2016).
All internal citations and quotation marks are omitted from case citations unless otherwise noted.
A. Factual Background
Nnebe is a Black woman of Nigerian origin who was born in 1966. (ECF No. 44 at 3-4). In September 1997, she began working for the DOE as a special education teacher. (Id. at 8 ¶ 1). In 2000, she began working as a “special education teacher support services” (“SETSS”) teacher. (Id.) Beginning in November 2007, she was assigned to Public School 251Q in Queens (“PS 251Q”) “as an IEP and SETSS teacher.” (Id. at 8 ¶ 2).
As defined in the Individuals with Disabilities Education Act, an “IEP” is an “individualized education program[,]” which is “a written statement that ‘sets out [a] child's present educational performance, establishes annual and short-term objectives for improvements in that performance, and describes the specially designed instruction and services that will enable the child to meet those objectives.'” D.D. ex rel. V.D. v. N.Y.C. Bd. of Educ., 465 F.3d 503, 507-08 (2d Cir. 2006) (quoting Honig v. Doe, 484 U.S. 305, 311 (1988)); see 20 U.S.C. § 1414(d).
In 2016, Barry-Grant became the Principal and Olivo the Assistant Principal of PS 251Q. (ECF No. 44 at 8 ¶ 3). Barry-Grant is “half black and half white,” and Olivo is “Caucasian[.]” (Id.) The Amended Complaint does not allege the age or national origin of Barry-Grant or Olivo. Nnebe alleges that, “[p]rior to the arrival of these administrators, [she] always received Satisfactory or Effective ratings” and had received “no disciplinary letters[.]” (Id. at 8 ¶ 4).
1. 2016 Report and 2016 Complaint
In November 2016, Barry-Grant wrote an “improper observation report” concerning Nnebe (the “2016 Report”). (ECF No. 44 at 11 ¶ 20). Aside from claiming that it was “improper[,]” (id.), Nnebe does not allege any other details concerning the 2016 Report or whether it impacted her employment. At some later point “in 2016,” Nnebe “filed a grievance against” Barry-Grant regarding the 2016 Report (the “2016 Complaint”). (Id.) Nnebe does not allege that she complained that the 2016 Report was discriminatory, but contends that Barry-Grant “was aware” of the 2016 Complaint because Nnebe “informed her.” (Id. at 11 ¶ 19).
2. 2019 Reassignment, 2019 Complaints, and Removal from PPT Email List
Since September 2019, Nnebe “ha[s] been denied the position of” SETSS teacher, and instead “was assigned a cluster position” (the “Cluster Position”). (ECF No. 44 at 11 ¶ 23 (the “2019 Reassignment”)). Unlike a SETSS position, which “involves working with students in small groups[,]” a Cluster Position “involves working with a whole class of about 25 students, relating to physical education, which is outside of [her] license area, and working with seven classes.” (Id.; see ECF No. 58 ¶ 5).
Nnebe also alleges that, at an unspecified time after September 2019, Olivo “removed [her] from a PPT meeting email invitation list, of which [Nnebe is] a key member[,]” (the “PPT Email List”). (ECF No. 44 at 12 ¶ 27). Olivo “sent all members meeting memos but did not send them to [Nnebe] even though the group meets in [Nnebe's] room and [she is] a mandated member.” (Id.)
3. The Investigation, 3020-a Charges, and Probable Cause Hearing
On December 17, 2019, following an investigation (the “Investigation”), Olivo presented Nnebe with the 3020-a Charges, which are “based on allegations of corporal punishment and a failure to supervise students engaging in a physical altercation[.]” (ECF No. 44 at 8 ¶ 6; see id. at 12 ¶ 28). That same day, the DOE “served [Nnebe] with [notice of a] probable cause hearing” to remove her from payroll pending resolution of the 3020-a Charges (the “PC Hearing”). (Id. at 15 ¶ 44). Werner represented Nnebe in the Investigation (Id. at 16 ¶ 49), and Nnebe's union provided her with legal representation for the 3020-a Charges and the PC Hearing. (Id. at 27).
Nnebe does not allege the date of the PC Hearing, but the 3020-a Decision states that “[o]n April 1, 2020,” the officer who presided over the PC Hearing “determined that there was no probable cause to remove [Nnebe] from the payroll.” (ECF No. 49-1 at 2).
Nnebe alleges that Olivo “tampered with” the Investigation in several ways. (ECF No. 44 at 15 ¶ 41). For example, “Olivo did not give [Nnebe] an option to come with any other union member other than the chapter leader, [] Werner, to represent [her] during [her] 48 hour investigative meeting with [Olivo,]” which took place on November 4, 2019 (the “Nov. 4 Meeting”) and November 7, 2019 (the “Nov. 7 Meeting”). (Id. at 15 ¶ 43; see Id. at 14-15 ¶¶ 40-41). At the Nov. 4 Meeting, Olivo “showed [Nnebe] a statement written by a student about an incident.” (Id. at 14 ¶ 40). “[O]n January 3, 2020, when [Nnebe] requested the statement, [she] discovered that [] Olivo had taken out the statement this student wrote and replaced it with what [] Olivo called a student interview that is two pages long” and “written by [] Olivo.” (Id.) Nnebe alleges that Olivo “misrepresented facts [in] the statement and made the situation more implicating.” (Id.) Similarly, at the PC Hearing, “Olivo presented a note she allegedly took when she interviewed [Nnebe,]” which “was similar to the false student interview statement and was used to corroborate the false document.” (Id. at 14-15 ¶ 40).
Likewise, at the Nov. 7 Meeting, Olivo showed Nnebe a picture of a student's bruised hand, which the student claimed Nnebe had caused. (ECF No. 44 at 15 ¶ 41). Nnebe, who alleges that the “hand was just red in the picture[,]” told Olivo that she “had no contact with that student.” (Id.) “[O]n January 3, 2020, when [Nnebe] requested this picture from [] Olivo, [she] discovered that [] Olivo had taken out this original picture of the hand and replaced it with another picture that had a fingernail print on it.” (Id.) Nnebe claims that Olivo “failed to produce the date and time stamp on this second picture” and that Olivo “replaced this picture to make the case appear worse for [Nnebe] and then charge [her] with corporal punishment and endangering the welfare of a minor.” (Id.) Finally, Olivo “got a false statement” from Matthew Dingfelder (“Dingfelder”), a white teacher. (Id. at 16 ¶ 47; see id. at 12 ¶ 29). Nnebe believes that Olivo “made . . . Dingfelder wr[i]te a statement stating that a student reported to him that [Nnebe] scratched her hand and indented it with a fingernail.” (Id. at 14 ¶ 38). Dingfelder also “told the teachers that he was the one who reported” Nnebe, even though the 3020-a Charges were “supposed to be confidential.” (Id. at 16 ¶ 47). Nnebe alleges that Dingfelder “did not witness any incident between [her and] the student[,]” (id.), and that, at the PC Hearing, “Olivo stated that she was aware of the incident from another source.” (Id. at 14 ¶ 38).
Nnebe also alleges that Werner, who is White, “deceived” her and “helped [] Olivo bring charges against [Nnebe] so they could replace [her] with a White teacher.” (ECF No. 44 at 16 ¶ 46). On November 11, 2019, “Werner asked [Nnebe] not to inform the UFT, [Nnebe's] teacher's union, about the allegations” against her, telling her that doing so would “make matters worse.” (Id. at 15 ¶ 44). On November 18, 2019, “Werner deceived [Nnebe] by saying that the union representative told him that [Nnebe was] not entitled to see the victim statements.” (Id. at 16 ¶ 46). Werner “also refused to help [Nnebe] write a grievance, and only did so when [Nnebe] reported him to the union.” (Id.) Werner then “guided [Nnebe] to write a response to [] Olivo in a way that enabled [Olivo] to use it to bring charges against [Nnebe].” (Id.) Specifically, although Nnebe denied having “any physical contact with the student[,]” Werner “asked [Nnebe] to write that [she] ‘did not recall' having any physical contact with the student.” (Id.) At the PC Hearing, Olivo stated that “she charged [Nnebe] with corporal punishment because [Nnebe] wrote that [she] ‘did not recall' and not that [she] did not have any physical contact with the student.” (Id.) Finally, Werner “told his co-teacher about” the 3020-a Charges, even though he was “supposed to keep this case confidential.” (Id. at 16 ¶ 49). On January 15, 2020, Nnebe reported Werner to her union and to Barry-Grant, and Werner subsequently “stepped down from being the chapter leader . . . because of his role in this incident.” (Id. at 16 ¶¶ 49, 51).
On January 21, 2020, Nnebe “was denied security clearance as a result of the pending 3020-a [C]harges[,] causing [her] to lose [her] position and income with the early intervention school program.” (ECF No. 44 at 16-17 ¶ 52). In February 2020, Nnebe was reassigned to PS 156. (Id. at 17 ¶ 54).
4. The Administrative Complaint
On June 4, 2020, Nnebe filed with the New York State Division of Human Rights and the U.S. Equal Employment Opportunity Commission (the “EEOC”), a charge of discrimination, which she amended on July 7, 2020, (the “Administrative Complaint”). (ECF No. 44 at 6, 17 ¶ 55; see id. at 22-31; ECF No. 59 at 12). On January 29, 2022, Nnebe and the DOE attended a meeting to discuss resolving the Administrative Complaint. (ECF No. 44 at 18 ¶ 64). At the meeting, the DOE “requested that [Nnebe] retire” in exchange for the DOE dropping the 3020-a Charges. (Id.) Nnebe alleges that “[t]his is further evidence of discriminatory behavior[,]” as the DOE “is aware that retiring with pending 3020-a charges will engender [a] penalty and cause [Nnebe] to lose [her] work position with the [DOE] and [her] ability to work for the DOE after retirement.” (Id.)
Nnebe alleges that in September 2020, she told the principal at ¶ 156 (“PS 156 Principal”) that she filed the Administrative Complaint, and that, since that time, the PS 156 “has treated [Nnebe] poorly” in retaliation. (ECF No. 44 at 17 ¶¶ 56-57). Specifically, Nnebe alleges that the PS 156 Principal has engaged in the following retaliatory acts: (i) in September 2020, she “turned only [Nnebe's] desk to face the wall like a criminal,” and “told [Nnebe] that [she] could sit in another chair without a desk[;]” (ii) on September 8, 2020, she “sent [Nnebe] to do a bulletin board for a class, even though the paraprofessional responsible for the board was not doing anything” and the “tasks were demeaning based on [Nnebe's] experience” and “years of service[;]” (iii) she “further demeaned [Nnebe] by having [Nnebe] ask school aides for instructions to put up signs around the school[;]” she “would also embarrass [Nnebe] at team meetings by asking [her] to share [her] work, [] knowing that [Nnebe] was not assigned any work to do[;]” (iv) on September 14, 2020, she “asked [Nnebe] to provide a doctor['s] note to be allowed to wear screen protector glasses for medical purposes, although [Nnebe has] been wearing screen protector glasses since [she] started at ¶ 156[;]” and (v) on September 21, 2020, she “tried to take a 1/2 CAR day from [Nnebe] when [she] only needed 30 minutes for a doctor appointment[.]” (ECF No. 44 at 17-18 ¶¶ 59-62 ((i) through (v) together, the “PS 156 Retaliatory Acts”)).
On February 10, 2022, the EEOC dismissed the Administrative Complaint “because [Nnebe] wishe[d] to pursue the matter in Federal District Court[,]” and notified Nnebe of her right to sue (the “Notice”). (ECF No. 44 at 6, 20). On February 14, 2022, Nnebe received the Notice. (Id. at 6).
5. The 3020-a Decision
On November 25, 2022, the hearing officer who presided over the 3020-a Charges (the “Hearing Officer”) issued the 3020-a Decision. (ECF No. 49-1). The 3020-a Decision reflects that the DOE charged Nnebe with seven “Specifications,” including: (i) on or about October 21, 2019, Nnebe grabbed “Student JW” (“JW”) by the arm and caused JW to cry (“Specification 1”); (ii) on or about October 22, 2019, Nnebe grabbed and threw the book bag of “Student JM,” grabbed JM's arm, and scratched or broke the skin of JM's arm, causing discoloration and an indentation (“Specification 2”); and (iii) on October 29, 2019, Nnebe “failed to supervise students” by allowing “an approximately two minute long video of an altercation to be recorded by a student” and by allowing or failing to prevent students from engaging in a physical altercation” (“Specification 3”, collectively, the “Specifications”). (Id. at 3-4)The DOE argued that the Specifications warranted Nnebe's termination. (Id. at 2).
The remaining four specifications derived from Nnebe's alleged conduct described in Specifications 1, 2, and 3, did not involve separate factual allegations, and are not germane to the Motions. (See ECF No. 491 at 4).
Evidentiary hearings were conducted on August 4, 2022, August 9, 2022, August 17, 2022, August 23, 2022, September 14, 2022, September 21, 2022, September 23, 2022, October 17, 2022, October 18, 2022, and October 20, 2022. (ECF No. 49-1 at 3). The DOE introduced thirty exhibits and offered five witnesses. (Id.) Nnebe introduced eleven exhibits and was the only witness to testify on her behalf. (Id.)
After reviewing the evidence and the parties' arguments (ECF No. 491- at 5-29), the Hearing Officer determined, inter alia, that Nnebe was guilty of Specification 2, and partially guilty of Specifications 1 and 3. (Id. at 30-39). With respect to Specifications 1 and 2, the Hearing Officer determined, inter alia, that (i) on October 21, 2019, Nnebe grabbed JW by the arm but was not responsible for making JW cry (id. at 30-31), and (ii) on October 22, 2019, Nnebe “roughly grabbed [] JM's arm causing a minor abrasion.” (Id. at 32). With respect to Specification 3, the Hearing Officer determined that there was “no proof that [] Nnebe knew that the video [of the altercation] was being recorded[,]” but that she “could have done more to end the fighting and should have contacted the school administration herself.” (Id. at 33).
The Hearing Officer found that Nnebe's conduct amounted to “a serious dereliction of duty[,]” but concluded that various “mitigating factors . . . ma[d]e the penalty of discharge too harsh.” (ECF No. 49-1 at 37). Instead, the Hearing Officer “direct[ed] that [] Nnebe be suspended from the service without pay for a period of one month[,]” and that, “at its discretion, the [DOE] may direct [Nnebe] to commence a [Doe] approved anger management or similar training course at [] Nnebe's expense with one year of” the 3020-a Decision. (Id. at 38).
6. Allegations of Discriminatory Intent
Nnebe alleges that she was “discriminated against because of [her] age and race.” (ECF No. 44 at 8 ¶ 5). In support, Nnebe alleges, inter alia, that: (i) during their “first three years” at ¶ 251Q, i.e., from 2016 to 2019, Barry-Grant and Olivo did not hire any black teachers and, in one instance, hired a White candidate over a Black candidate who, according to Nnebe, was “better qualified” because she “was well prepared” and “had good classroom management skills” (the “Discriminatory Hiring Practices Allegations”) (id. at 9 ¶¶ 9-10); and (ii) Barry-Grant and Olivo “disproportionately target[] older black teachers for termination” and “treat[] black staff unfairly” compared to white staff (the “Discriminatory Discipline Allegations”). (ECF No. 44 at 89 ¶¶ 7-9; see ECF No. 59 at 19-24). Nnebe focuses on Specification 3, and identifies several younger White teachers “who ha[d] students fight in their classes” but “were not brought up on charges like [she] was.” (ECF No. 44 at 12 ¶ 29; see id. at 13 ¶¶ 30-32; ECF No. 59 at 20-24). Nnebe also alleges that Barry-Grant and Olivo “are retaliating against” her for filing the 2016 Complaint. (ECF No. 44 at 11 ¶ 20).
B. Procedural Background
1. The Complaint
On May 11, 2022, Nnebe filed the Complaint, asserting discrimination, retaliation, and hostile work environment claims under Title VII (the “Title VII Claims”), the ADEA (the “ADEA Claims”), Section 1981 (the “Section 1981 Claims”), the NYSHRL (the “NYSHRL Claims”), and the NYCHRL (the “NYCHRL Claims”). (ECF No. 1 at 3-4).
On July 12, 2022 and August 17, 2022, Defendants moved to dismiss the Complaint. (ECF Nos. 25; 31 (the “First MTDs”)). On January 30, 2023, the Court issued a Report and Recommendation (the “R&R”), recommending that the First MTDs be granted. (ECF No. 39). See Nnebe v. City of New York, No. 22 Civ. 3860 (VEC) (SLC), 2023 WL 2393920 (S.D.N.Y. Jan. 30, 2023) (“Nnebe I”). Specifically, the Court recommended that Nnebe's Title VII and ADEA Claims against Barry-Grant, Olivo, and Werner be dismissed with prejudice, and that (i) her Title VII and ADEA Claims against the City and DOE, (ii) her Section 1983, NYSHRL, and NYCHRL Claims against the City Defendants, and (iii) her NYSHRL and NYCHRL Claims against Werner, who Nnebe seeks to hold liable under an aider-and-abettor theory, be dismissed without prejudice and with leave to replead. Nnebe I, 2023 WL 2393920, at *20.
In the R&R, the Court recommended that Nnebe's Section 1981 Claims be construed as claims alleging violations of the Equal Protection Clause pursuant to 42 U.S.C. § 1983 (the “Section 1983 Claims”). Nnebe I, 2023 WL 2393920, at *8. To the extent Nnebe reasserts her Section 1981 Claims in the Amended Complaint, the Court again construes them as Section 1983 Claims, for the reasons set forth in the R&R.
On February 17, 2023, Judge Caproni issued an Opinion and Order (the “O&O”), adopting the R&R in its entirety. (ECF No. 43). See Nnebe v. City of New York, No. 22 Civ. 3860 (VEC) (SLC), 2023 WL 2088526, at *1 (S.D.N.Y. Feb. 17, 2023) (“Nnebe II”). Judge Caproni dismissed Nnebe's claims but granted her leave to replead the (i) Title VII and ADEA Claims against the City and the DOE; (ii) Section 1983, NYSHRL, and NYCHRL Claims against the City Defendants; and (iii) NYSHRL and NYCHRL Claims against Werner. Nnebe II, 2023 WL 2088526, at *2. Judge Caproni advised that “[t]he additional information, if available, that Nnebe should add to any amended complaint” included:
1. Facts from which the Court could reasonably infer that the City Defendants were motivated by discriminatory animus when they reassigned Nnebe in 2019 and when they served Nnebe with Section 3020-a charges.
2. Facts from which the Court could reasonably infer that Nnebe's complaints were about an act she believed was unlawful under the anti-discrimination
laws and from which the Court could reasonably infer that the principal at ¶ 156 was aware of her administrative complaint.
3. Facts from which the Court could reasonably infer that Defendants engaged in continuous and concerted, as opposed to discrete, acts of hostility toward Nnebe because of any of her protected characteristics.
4. Facts from which the Court could reasonably infer that any constitutional violation suffered by Nnebe was the result of a municipal policy.
5. Facts from which the Court could reasonably infer that Werner contributed to acts of discrimination against Nnebe.Nnebe II, 2023 WL 2088526, at *2-3.
2. The Amended Complaint
On March 17, 2023, Nnebe filed the Amended Complaint. (ECF No. 44). Against the City Defendants, she reasserts claims under Title VII, the ADEA, Section 1983, the NYSHRL, and the NYCHRL for discrimination (the “Discrimination Claims”), retaliation (the “Retaliation Claims”), and hostile work environment (the “HWE Claims”). (ECF No. 44 at 3-4). With respect to her Section 1983 Claims, Nnebe asserts a claim for municipal liability under Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658 (1978), based on the DOE's alleged “policy of bringing false 3020-a charges against older teachers,” (the “Monell Claim”). (Id. at 18 ¶ 63). Against Werner, Nnebe reasserts her claims under the NYSHRL and NYCHRL based on a theory of “aider-and-abettor liability” (the “Aiding and Abetting Claims”). (Id. at 16 ¶ 46; see ECF No. 59 at 31).
On April 7, 2023 and April 27, 2023, the City Defendants and Werner, respectively, filed their Motions. (ECF Nos. 48; 54). On June 5, 2023, Nnebe filed the Opposition and the Affidavit. (ECF Nos. 58; 59). On June 19, 2023 and July 24, 2023, Werner and the City Defendants, respectively, filed replies. (ECF Nos. 62; 64).
III. DISCUSSION
A. Legal Standard for Motion to Dismiss
In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court accepts as true all factual allegations in the Complaint and draws all reasonable inferences in favor of the plaintiff. See N.J. Carpenters Health Fund v. Royal Bank of Scotland Grp., PLC, 709 F.3d 109, 119 (2d Cir. 2013); Trujillo v. City of New York, No. 14 Civ. 8501 (PGG), 2016 WL 10703308, at *4 (S.D.N.Y. Mar. 29, 2016), aff'd, 696 Fed.Appx. 560 (2d Cir. 2017). In this pro se case, “the Court reads [Nnebe]'s papers ‘liberally' and ‘interpret[s] them to raise the strongest arguments that they suggest.'” Williams v. N.Y.C. Dep't of Educ., No. 17 Civ. 1996 (AJN), 2018 WL 4735713, at *1 (S.D.N.Y. Sept. 29, 2018) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). “This standard is particularly applicable when a plaintiff is alleging employment discrimination, because a court is obligated to construe [a pro se plaintiff's] pleadings liberally, particularly when they allege civil rights violations.” Williams v. Victoria's Secret, No. 15 Civ. 4715 (PGG) (JLC), 2017 WL 384787, at *7 (S.D.N.Y. Jan 27, 2017), adopted by, 2017 WL 1162908 (S.D.N.Y. Mar. 28, 2017).
“‘[A] plaintiff alleging employment discrimination or retaliation is not required to plead facts sufficient to establish a prima facie case[.]"' Trujillo, 2016 WL 10703308, at *4 (quoting Krasner v. HSH Nordbank AG, 680 F.Supp.2d 502, 512 (S.D.N.Y. 2010)). Rather, “the ‘ordinary rules for assessing the sufficiency of a complaint' under Federal Rule of Civil Procedure 8(a)'s notice pleading standard apply.” Krasner, 680 F.Supp.2d at 512 (quoting Swierkiewicz v. Sorema N. A., 534 U.S. 506, 511 (2002)). Under Rule 8(a), a plaintiff must set forth a “short and plain statement of the claim[,]” Fed.R.Civ.P. 8(a), “with sufficient factual ‘heft to sho[w] that the pleader is entitled to relief.'” Krasner, 680 F.Supp.2d at 512 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
To withstand a motion to dismiss, the complaint must contain factual allegations that “‘raise a right of relief above the speculative level,' . . . and present claims that are ‘plausible on [their] face[.]"' Krasner, 680 F.Supp.2d at 512 (quoting Twombly, 550 U.S. at 555, 570). A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. A complaint that pleads facts “merely consistent with” a defendant's liability “stops short of the line between possibility and plausibility of entitlement to relief.” Twombly, 550 U.S. at 557. If “the allegations in a complaint, however true, could not raise a claim of entitlement to relief[,]” id. at 558, or if the plaintiff has “not nudged [his] claims across the line from conceivable to plausible, the[] complaint must be dismissed.” Id. at 570. The Second Circuit has explained that, where a complaint “consist[s] of nothing more than naked assertions, and set[s] forth no facts upon which a Court could find a violation of the Civil Rights Acts, [it] fails to state a claim under Rule 12(b)(6).” Martin v. N.Y. State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978).
In reviewing the Motion, the Court considers “the allegations contained within the four corners of” the Complaint, Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998), “documents attached . . . as exhibits, and documents incorporated by reference[.]” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). The Court may also consider a document, although not incorporated by reference, on which the Complaint relies for its terms and is “integral to the complaint.” Id. at 113. In addition, the Court may consider allegations a pro se litigant makes in opposition a motion to dismiss to the extent those allegations “are consistent with the facts [s]he alleges in the Complaint.” Evans v. City of New York, No. 21 Civ. 8660 (JPC), 2022 WL 1172740, at *1 n.1 (S.D.N.Y. Apr. 20, 2022); see Henning v. N.Y.C. Dep't of Corr., No. 14 Civ. 9798, 2016 WL 297725, at *3 (S.D.N.Y. Jan. 22, 2016) (crediting allegation in pro se plaintiff's opposition papers “in evaluating the sufficiency of his complaint.”); White v. Schriro, No. 14 Civ. 3204 (AT) (FM), 2015 WL 4470168, at *1 (S.D.N.Y. July 15, 2015) (same).
B. Application
Defendants seek dismissal of the Amended Complaint in its entirety. (See ECF Nos. 48; 50; 64; 56). The City Defendants first argue that several of Nnebe's claims suffer from several procedural defects: (i) the City is not a proper party; (ii) Nnebe cannot pursue her NYSHRL and NYCHRL Claims against the DOE because she failed to file a notice of claim; and (ii) Nnebe's Title VII and ADEA Claims are partly time-barred. (ECF No. 50 at 13, 16). On the substance of Nnebe's factual allegations, the City Defendants argue that she fails to state plausible Discrimination, Retaliation, and HWE Claims under federal, state, or local law, and that she fails to state a plausible Monell Claim against the DOE. (Id. at 16-33). Similarly, Werner argues that Nnebe's Aiding and Abetting Claims against him fail because “the Amended Complaint fails to allege facts from which [the] Court could reasonably infer that Werner contributed to acts of discrimination against Nnebe.” (ECF No. 56 at 10-13). Finally, all Defendants argue that, with respect to her Section 1983, NYSHRL, and NYCRL Claims, Nnebe “is collaterally estopped from denying the factual findings make by the § 3020-a Hearing Officer.” (Id. at 14-15; see ECF No. 56 at 13). The Court addresses each of these arguments in turn.
1. Claims Against the City
The City Defendants argue-and Nnebe does not contest-that the City is not a proper party to this action because the City and the DOE are separate entities, and there are no allegations specific to the City in the Amended Complaint. (ECF No. 50 at 13; see ECF No. 59 at 11 (Nnebe stating that she “agree[s] with Defendants on this point as long as the [DOE] remains the proper party”). Accordingly, the Court respectfully recommends that Nnebe's claims against the City be DISMISSED. See Rothbein, 2019 WL 977878, at *3.
2. NYSHRL and NYCHRL Claims Against the DOE
The City Defendants argue that Nnebe's NYSHRL and NYCHRL Claims against the DOE should be dismissed because she failed to file a notice of claim pursuant to New York Education Law §3813(1). (ECF No. 50 at 13). Nnebe does not dispute her failure to file a notice of claim, but argues, inter alia, that she "complie[d] with the § 3813(1) notice requirement by filing” the Administrative Complaint. (ECF No. 59 at 11-12).
“New York Education Law section 3813(1) requires a plaintiff to serve a notice of claim prior to initiating a lawsuit against a school, a school district, a board of education, or an education officer” within 90 days of the accrual of the claim. Everett v. N.Y.C. Dep't of Educ., No. 21 Civ. 7043 (JPC), 2023 WL 5629295, at *10 (S.D.N.Y. Aug. 31, 2023) (“Everett II”); see N.Y. Educ. Law § 3813(1); Mitchell v. N.Y.C. Dep't of Educ., No. 20 Civ. 1555 (PGG) (SLC), 2021 WL 8013770, at *5 (S.D.N.Y. May 7, 2021), adopted by, 2022 WL 621956 (S.D.N.Y. Mar. 3, 2022). "[T]he failure to serve the proper public body with a notice of claim is a fatal defect mandating dismissal of th[e] action.” Wesley-Dickson v. Warwick Valley Cent. Sch. Dist., 973 F.Supp.2d 386, 411 (S.D.N.Y. 2013), aff'd, 586 Fed.Appx. 739 (2d Cir. 2014). An administrative complaint "can suffice as a substitute for a notice of claim ‘only under the rare and limited circumstance where the [] charge puts the school district on notice of the precise claims alleged, is served on the governing board of the district (and not a different arm of the district), and is served within the statutory time period.'” Rettino v. N.Y.C. Dep't of Educ., No. 19 Civ. 5326 (JGK), 2020 WL 4735299, at *5 (S.D.N.Y. Aug. 14, 2020) (quoting Brtalik v. S. Huntington Union Free Sch. Dist., No. 10 Civ. 10 (LDW), 2010 WL 3958430, at *5 (E.D.N.Y. Oct. 6, 2010)).
Here, “because [Nnebe] does not allege that she served her [Administrative Complaint] on the governing board of the DOE, it cannot serve as a substitute for a formal notice of claim.” Bernheim v. N.Y.C. Dep't of Educ., No. 19 Civ. 9723 (VEC) (JLC), 2020 WL 3865119, at *6 (S.D.N.Y. July 9, 2020), adopted by, 2020 WL 4383503 (S.D.N.Y. July 31, 2020). In any event, Nnebe did not file the Administrative Complaint until June 4, 2020, (ECF No. 44 at 6), well over 90 days after Olivo presented her with the 3020-a Charges on December 17, 2019, i.e., the latest alleged discriminatory conduct. (Id. at 12 ¶ 28; see id. at 22 (alleging that the “most recent act of discrimination happened on” December 17, 2019)). As a result, Nnebe's NYSHRL and NYCHRL claims against the DOE “must be dismissed for failure to satisfy the notice of claim requirement.” Everett, 2023 WL 5629295, at *10; see Richard v. N.Y.C. Dep't of Educ., No. 16 Civ. 957 (MKB), 2017 WL 1232498, at *21 (E.D.N.Y. Mar. 31, 2017) (collecting cases). Accordingly, the Court respectfully recommends that Nnebe's NYSHRL and NYCHRL claims against the DOE be DISMISSED.
3. Timeliness of Nnebe's Claims
The City Defendants argue that Nnebe's Title VII and ADEA Claims are time-barred to the extent they accrued prior to August 9, 2019, i.e., 300 days before she filed the Administrative Complaint on June 4, 2020). (ECF No. 50 at 16). The City Defendants also argue that Nnebe's Section 1983, NYSHRL, and NYCHRL Claims are time-barred to the extent they accrued prior to May 11, 2019, i.e., three years before Nnebe filed the Complaint. (Id.) Nnebe responds that (i) “discriminatory adverse actions that occurred before August 9, 2019, provide relevant background evidence to [her] timely claims[]” (ii) she “may recover for acts occurring more than 300 days before” she filed the Administrative Complaint “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[,]” and (iii) her claims are subject to the “continuing violation doctrine[.]” (ECF No. 59 at 14-15).
a. Applicable Statutes of Limitations
i. Title VII and ADEA Claims
To pursue claims under Title VII and the ADEA, a plaintiff must file a discrimination charge with the EEOC, or a state or local agency capable of granting relief from discriminatory practices, within 300 days of the alleged discriminatory action. See 42 U.S.C. §§ 2000e-5(e)(1), 12117(a); 29 U.S.C. §§ 626(d)(1)(B), 633(b); Espinosa v. Weill Cornell Med. Coll., No. 18 Civ. 11665 (AT), 2021 WL 1062592, at *3 (S.D.N.Y. Mar. 19, 2021); Rosen v. N.Y.C. Dep't of Educ., No. 18 Civ. 6670 (AT), 2019 WL 4039958, at *3 (S.D.N.Y. Aug. 27, 2019). “[A] plaintiff must [then] file an action in federal court within 90 days of receipt of a right-to-sue letter from the EEOC.” Henriquez-Ford v. Council of Sch. Sup'rs & Adm'rs, No. 14 Civ. 2496 (JPO), 2015 WL 3867565, at *5 (S.D.N.Y. June 23, 2015) (citing 42 U.S.C. § 2000e-5(f)(1)); see 29 U.S.C. § 626(e).
ii. Section 1983, NYSHRL, and NYCHRL Claims
“Section 1983, . . . the NYSHRL, and the NYCHRL each has a three-year statute of limitations period.” Xanthakos v. City Univ. of New York, No. 17 Civ. 9829 (VEC), 2020 WL 5026930, at *6 (S.D.N.Y. Aug. 24, 2020); see N.Y. Civ. Prac. L. & R. § 214(2); N.Y.C. Admin. Code § 8-502(d); Kassner v. 2d Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007); Espinosa, 2021 WL 1062592, at *4.
b. Continuing Violation Exception
“Although discrete incidents of discrimination that are not the result of a discriminatory policy or practice will not ordinarily amount to a continuing violation, ‘where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice,' a continuing violation may be found.” Espinosa, 2021 WL 1062592, at *3 (quoting Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994)). “If a plaintiff shows a continuing violation occurred, she is entitled to have the court consider all relevant actions allegedly taken pursuant to the employer's discriminatory policy or practice, including those that would otherwise be time barred.” Id. (quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 713 (2d Cir. 1996)). Under the continuing-violation exception, “if a plaintiff has experienced a continuous practice and policy of discrimination, . . . the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it.” Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (internal citations omitted). “[T]he doctrine ‘is heavily disfavored in the Second Circuit and courts have been loath to apply it absent a showing of compelling circumstances.'” Doe v. State Univ. of New York Purchase Coll., No. 21 Civ. 8417 (KMK), 2022 WL 2972200, at *9 (S.D.N.Y. July 27, 2022) (quoting Weslowski v. Zugibe, 14 F.Supp.3d 295, 304 (S.D.N.Y. 2014)).
For the continuing violation exception to apply, “a plaintiff must at the very least allege that one act of discrimination in furtherance of the ongoing policy occurred within the limitations period.” Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 220 (2d Cir. 2004). The Supreme Court has explained that “[d]iscrete acts such as termination, failure to promote, denial of transfer, or refusal to hire are easy to identify” and are “not actionable if time barred, even when they are related to acts alleged in timely filed charges.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-15 (2002). “Instead, ‘[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act,' and even serial violations-a series of discrete but related acts of discrimination-do not warrant application of the continuing violations doctrine.” Milani v. IBM, 322 F.Supp.2d 434, 452 (S.D.N.Y. 2004) (quoting Morgan, 536 U.S. at 113-14). The Supreme Court's holding in Morgan also supplies the standard for applying the continuing-violations exception to NYSHRL and NYCHRL claims. See Bermudez v. City of New York, 783 F.Supp.2d 560, 574 (S.D.N.Y. 2011) (citing Bartman v. Shenker, 5 Misc.3d 856 (N.Y. Sup. Ct. 2004)).
“The continuing violation doctrine has often been found applicable to hostile-work-environment claims.” Alvarado v. Mount Pleasant Cottage Sch. Dist., 404 F.Supp.3d 763, 779 (S.D.N.Y. 2019). “A hostile work environment claim, unlike a discrete employment action, will be treated as a continuing violation where the claim is composed of a series of separate acts that collectively constitute one ‘unlawful employment practice.'” Taylor v. City of New York, 207 F.Supp.3d 293, 309 (S.D.N.Y. 2016) (citations omitted). “[T]o be part of the same actionable hostile-work-environment practice, the timely offensive incident must be ‘sufficiently related' to incidents outside of the limitations period.” Alvarado, 404 F.Supp.3d at 779 (quoting Taylor, 207 F.Supp.3d at 309).
c. Application
Nnebe filed the Administrative Complaint on June 4, 2020, (ECF No. 44 at 6), and commenced this action on May 11, 2022. (ECF No. 1). Accordingly, her Title VII and ADEA claims that accrued prior to August 9, 2019 and her Section 1983, NYSHRL, and NYCHRL Claims that accrued prior to May 11, 2019 are time-barred unless the continuing violation exception applies.
The Court finds that the continuing violation exception does not apply to Nnebe's claims. As an initial matter, the Court notes that Nnebe appears to premise all her claims entirely on conduct that occurred within the applicable limitations' periods, i.e., the 2019 Reassignment, which occurred in September 2019 (see ECF No. 44 at 11 ¶23), and the 3020-a Charges, which were filed in December 2019. (See Id. at 12 ¶ 28). While the Amended Complaint includes some allegations dating to September 2016, including that Olivo “roll[ed] her eyes” at Nnebe and rated one of Nnebe's lessons as “developing,” (id. at 10-11 ¶¶ 14, 18), Nnebe describes these allegations only as “background evidence” to support her timely claims, not standalone claims. (ECF No. 59 at 14). In any event, the Court finds that these acts do not amount to an ongoing and systematic scheme of discrimination but rather are “[d]iscrete acts” that occurred outside the statutory period and, therefore, the continuing violation doctrine does not apply. Morgan, 536 U.S. at 114. Given that these acts occurred three years before the earliest act within the limitations period, they “are sufficiently isolated in . . . as to break the asserted continuum of discrimination.” Anderson v. N.Y.C. Dep't of Fin., No. 19 Civ. 7971 (RA), 2020 WL 1922624, at *4 (S.D.N.Y. Apr. 21, 2020). “The Court therefore cannot find that [Nnebe's allegations about events in 2016] are sufficiently related to constitute a continuing violation.” Taylor, 207 F.Supp.3d at 309-10; see Panchishnak v. Cnty of Rockland, No. 20 Civ. 10095 (KMK), 2021 WL 4429840, at *4 (S.D.N.Y. Sept. 27, 2021) (finding continuing violation doctrine did not apply to hostile work environment claim where the plaintiff's untimely allegations had “no plausible connection to” the timely allegations); Zabar v. N.Y.C. Dep't of Educ., No. 18 Civ. 6657 (PGG), 2020 WL 2423450, at *4 (S.D.N.Y. May 12, 2020) (granting motion to dismiss as to employment actions that took place outside the statute of limitations period); Concey v. N.Y.S. Unified Ct. Sys., No. 09 Civ. 8858 (PGG), 2011 WL 4549386, at *13 (S.D.N.Y. Sept. 30, 2011) (finding that allegedly discriminatory remarks and failure to promote that occurred outside the statute of limitations period were “discrete acts” that were time-barred).
Accordingly, the Court respectfully recommends that Nnebe's Title VII and ADEA claims that accrued prior to August 9, 2019 and her Section 1983, NYSHRL, and NYCHRL Claims that accrued prior to May 11, 2019 be DISMISSED as untimely.
4. Discrimination Claims Against the City Defendants
Nnebe alleges that the City Defendants discriminated against her because of her race, color, national origin, and age. (ECF No. 44 at 3-5). The City Defendants argue that Nnebe has failed to plead any plausible Discrimination Claim. (ECF No. 50 at 16-23). For the reasons set forth below, the finds that Nnebe has plausibly alleged that the City Defendants engaged in race and age discrimination in connection with Specification 3 but fails to state any other claim for discrimination.
a. Legal Standard
Title VII makes it is unlawful for an employer to “discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of [her] race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1). The ADEA prohibits age discrimination in employment. See 29 U.S.C. § 623(a)(1) (making it unlawful for an employer to “discharge any individual or otherwise discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of [her] age”). “The Equal Protection Clause prohibits government officials from intentionally discriminating against individuals based on their race, ethnicity, gender or national origin.” Dean v. Town of Hempstead, 527 F.Supp.3d 347, 430 (E.D.N.Y. 2021) (citing Ross v. New Canaan Env't Comm'n, 532 Fed.Appx. 12, 13 (2d Cir. 2013)); see U.S. Const. amend. XIV, § 1).The NYSHRL and NYCHRL prohibit age, race, and national origin discrimination. See Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999); N.Y. Exec. L. § 295; N.Y.C. Admin. Code § 8-107.
“Age is not a protected class under the Fourteenth Amendment's Equal Protection Clause.” Shein v. N.Y.C. Dep't of Educ., No. 15 Civ. 4236 (DLC), 2016 WL 676458, at *6 (S.D.N.Y. Feb. 18, 2016) (citing Kimel v. Florida Bd. of Regents, 528 U.S. 62, 83 (2000)).
The Court analyzes Nnebe's Discrimination Claims under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Naumovski, 934 F.3d at 214 (noting that “courts . . . employ the McDonnell Douglas framework to analyze [Section] 1983 claims”); Matias v. Montefiore Med. Ctr., No. 20 Civ. 2849 (VEC), 2022 WL 4448585, at *4 (S.D.N.Y. Sept. 23, 2022) (noting that the McDonnell Douglas framework applies to “[discrimination claims brought pursuant to the . . . ADEA, NYSHRL, and NYCHRL”); Floyd v. N.Y.C. Dep't of Educ., No. 10 Civ. 8951 (AT), 2014 WL 171156, at *8 (S.D.N.Y. Jan. 13, 2014) (“This burden-shifting framework applies to claims under the . . . NYSHRL . . . and [Section] 1983”); Dabney v. Christmas Tree Shops, 958 F.Supp.2d 439, 450 n.11 (S.D.N.Y. 2013) (“This framework applies to Title VII, ADEA, and NYSHRL claims.”) (citing Dixon v. Int'l Fed'n of Acct., 416 Fed.Appx. 107, 109 (2d Cir. 2011)).
“Pursuant to the McDonnell Douglas burden shifting framework, a plaintiff must first present a prima facie case by establishing (1) that [she] belongs to a protected class; (2) that [she] is qualified or competent to perform the job; (3) that [she] suffered an adverse employment action; and (4) that the adverse employment action occurred under circumstances giving rise to an inference of discrimination.” Franklin v. Whole Foods Mkt. Grp., Inc., No. 20 Civ. 4935 (VEC), 2022 WL 256460, at *4 (S.D.N.Y. Jan. 26, 2022) (citing Abrams v. Dep't of Pub. Safety, 764 F.3d 244, 252 (2d Cir. 2014). “If a plaintiff can meet the initial burden of showing a prima facie case, ‘the burden then shifts to the defendant to offer a legitimate nondiscriminatory reason for the [adverse employment action]. If the defendant does so, the burden returns to the plaintiff to show that the real reason for [the adverse employment action] was' her membership in a protected class.” Boatright v. U.S. Bancorp, No. 18 Civ. 7293 (LJL), 2020 WL 7388661, at *14 (S.D.N.Y. Dec. 16, 2020) (citing Ruiz v. Cnty. of Rockland, 609 F.3d 486, 491-92 (2d Cir. 2010)). Although Nnebe need not plead a prima facie case of discrimination to survive a motion to dismiss, she “must allege sufficient facts showing that she is entitled to relief.” Bermudez v. City of New York, 783 F.Supp.2d 560, 575 (S.D.N.Y. 2011). “[T]he elements of a prima facie case ‘provide an outline of what is necessary' to render such claims plausible.” Chalmers v. City of New York, No. 20 Civ. 3389 (AT), 2021 WL 4226181, at *3 (S.D.N.Y. Sept. 16, 2021) (quoting Kassman v. KPMG LLP, 925 F.Supp.2d 453, 461 (S.D.N.Y. 2013)).
Under the ADEA, “the final stage [of the analysis] is different. The plaintiff must show not only that the defendant discriminated on the basis of age, but also that age discrimination was the ‘but-for' cause of the adverse action, and not merely one of the motivating factors.” Dabney, 958 F.Supp.2d at 451 (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009)); see Yu v. N.Y.C. Hous. Dev. Corp., 494 Fed.Appx. 122, 124-25 (2d Cir. 2012).
Similarly, “[a] Section 1983 plaintiff must also demonstrate that the defendant's alleged misconduct was both the ‘but for' cause and the proximate cause of [her] injury.” Arnold v. Geary, 582 Fed.Appx. 42, 43 (2d Cir. 2014) (citing Zahrey v. Coffey, 221 F.3d 342, 352 n.8 (2d Cir. 2000)); see Naumovski, 934 F.3d at 214 (“[A] plaintiff pursuing a claim for employment discrimination under [Section] 1983 rather than Title VII must establish that the defendant's discriminatory intent was a ‘but-for' cause of the adverse employment action or the hostile environment.”). In addition, “[a]n individual may be held liable under [Sections] 1981 and 1983 only if that individual is ‘personally involved in the alleged deprivation.'” Littlejohn v. City of New York, 795 F.3d 297, 314 (2d Cir. 2015) (quoting Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir.2004)). “Personal involvement can be established by showing that: ‘(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference . . . by failing to act on information indicating that unconstitutional acts were occurring.'” Id. (quoting Back, 365 F.3d at 127).
“[A] plaintiff alleging a claim under NYCHRL need only satisfy the ‘mixed-motive' standard, whereby the plaintiff need only show that age was ‘a motivating factor' in her [adverse employment action].” Rodriguez v. City of New York, No. 09 Civ. 1378 (KAM) (RER), 2011 WL 3610751, at *12 (E.D.N.Y. Aug. 16, 2011), aff'd, 484 Fed.Appx. 637 (2d Cir. 2012). Similarly, in August 2019, “the NYSHRL was amended to ‘render the standard for claims closer to the standard under the NYCHRL.'” Summit v. Equinox Holdings, Inc., No. 20 Civ. 4905 (PAE), 2022 WL 2872273, at *18 (S.D.N.Y. July 21, 2022) (quoting Wellner v. Montefiore Med. Ctr., No. 17 Civ. 3479 (KPF), 2019 WL 4081898, at *5 n.4 (S.D.N.Y. Aug. 29, 2019)). The amendment “applies to claims occurring on or after October 11, 2019, without retroactive effect.” Id.
Finally, the Court must analyze Nnebe's NYCHRL Discrimination Claim “separately and independently from any federal and state law claims,” the interpretation of which “can serve only ‘as a floor below which the [NYCHRL] cannot fall.'” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (quoting Local Civil Rights Restoration Act of 2005 §§ 1, 7). “To state a claim for discrimination under the NYCHRL, a plaintiff need only show differential treatment of any degree based on a discriminatory motive[,]” and neither “a materially adverse employment action, nor severe and pervasive conduct” is required. Lebowitz v. N.Y.C. Dep't of Educ., 407 F.Supp.3d 158, 173 (E.D.N.Y. 2017). “[E]ven under this more liberal pleading standard, a plaintiff must still plausibly allege that he or she was subjected to unequal treatment because of a protected characteristic.” Id. (emphasis added).
b. Application
Nnebe argues that, in her Amended Complaint, she “has pled plausible age and race discrimination claims.” (ECF No. 59 at 15). The City Defendants do not contest that Nnebe adequately alleges the first two elements of a prima facie discrimination claim, i.e., that she belongs to a protected class and is qualified to perform her job. The City Defendants also acknowledge that, with respect to the third element, the Court's prior determinations that the 2019 Reassignment and the 3020-a Charges constitute adverse employment actions “are law of the case[.]” (ECF No. 50 at 16-17 n. 4). They argue, however, that Nnebe has failed to plausibly allege the fourth element, i.e., that these adverse employment actions occurred under circumstances giving rise to an inference of discrimination. (Id. at 17-23).
Although the Complaint and Amended Complaint included discrimination, retaliation, and hostile work environment claims based on Nnebe's national origin (see ECF Nos. 1 at 3; 44 at 3), neither contains any allegations plausibly linking Nnebe's national origin to any adverse employment action. Accordingly, to the extent Nnebe continues to assert national origin discrimination claims, the Court respectfully recommends that they be DISMISSED.
To support her claim that the City Defendants were motivated by discriminatory animus, Nnebe relies on (i) the Discriminatory Hiring Practices Allegations, and (ii) the Discriminatory Discipline Allegations. (ECF No. 44 at 8-9 ¶¶ 7-9; see ECF No. 59 at 19-24). To support the Discriminatory Discipline Allegations, Nnebe focuses on Specification 3, identifying several younger White teachers “who ha[d] students fight in their classes” but “were not brought up on charges like [she] was.” (ECF No. 44 at 12 ¶ 29; see id. at 13 ¶¶ 30-32; ECF No. 59 at 20-24).
The City Defendants argue that the Discriminatory Hiring Practices Allegations are insufficient to create a plausible inference of discrimination because Nnebe “fails to provide details as to the number or qualifications of the applicants and the individuals hired[.]” (ECF No. 50 at 20). Regarding the Discriminatory Discipline Allegations, the City Defendants argue that “the White teachers under 40 year[s] of age [Nnebe] compares herself to are not suitable comparators because the conduct the White teachers engage[d] in was not of comparable seriousness.” (Id. at 22). With respect to Specification 3, the City Defendants argue that, because Nnebe “committed at least three violations (two incidents of corporal punishment and one incident of failure to supervise) and Defendants brought 3020-a charges against her for all three incidents[,]” she cannot compare herself to “younger white teachers and one white older teacher whom she alleges only committed one violation in the workplace (failure to supervise).” (ECF No. 64 at 12).
“An inference of discrimination can arise from circumstances including, but not limited to, 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 [adverse employment action].” Littlejohn, 795 F.3d at 312. “[A] claim for discrimination . . . is properly dismissed where the plaintiff fails ‘to plead any facts that would create an inference that any adverse action taken by any defendant was based upon' the protected characteristic.” Humphries v. City Univ. of New York, No. 13 Civ. 2641 (PAE), 2013 WL 6196561, at *6 (S.D.N.Y. Nov. 26, 2013) (quoting Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007)).
For the same reasons articulated in the R&R, the Court finds that Nnebe's Discriminatory Hiring Practices Allegations fail to support a plausible inference that the 2019 Reassignment or 3020-a Charges occurred under discriminatory circumstances. See Nnebe I, 2023 WL 2393920, at *13. Nnebe claims that Barry-Grant and Olivo did not hire any black employees during their first three years at ¶ 251Q, and that, in November 2019, they hired a White candidate over a Black candidate who was “better qualified” because she was “well prepared” and “had good classroom management skills.” (ECF No. 44 at 9 ¶ 10). As with the Complaint, however, Nnebe still provides “no facts from which the Court could discern the number or qualifications of the applicants and the individuals hired.” Nnebe I, 2023 WL 2393920, at *13. As a result, her allegations “do[] not suffice to infer a discriminatory hiring practice.” Watkins v. First Student, Inc, No. 17 Civ. 1519 (CS), 2018 WL 1135480, at *16 (S.D.N.Y. Feb. 28, 2018) ("[Statistics showing only raw percentages of employees' races do not support inference of discrimination absent any detail as to number of individuals and applicants, qualifications of applicants and those hired, and number of openings[.]”) (citing Burgis v. N.Y.C. Dep't of Sanitation, 798 F.3d 63, 70 (2d Cir. 2015)); see Lomotey v. Conn. Dep't of Transp., 355 Fed.Appx. 478, 481 (2d Cir. 2009) (“[W]ithout further information on key considerations such as the racial composition of the qualified labor pool, [raw numbers] cannot support an inference of discrimination.”). Because Nnebe alleges no other facts to suggest that the 2019 Reassignment occurred under circumstances giving rise to an inference of age or race discrimination, she has failed to plausibly allege a Discrimination Claim based on the 2019 Reassignment.
The Court next considers whether the Disparate Discipline Allegations support a plausible inference that the 3020-a Charges were motivated by discriminatory animus. Where a plaintiff alleges differential treatment, she may establish an inference of discrimination by alleging “that [s]he was treated less favorably than similarly situated employees” outside the protected class. Brown v. Daikin Am. Inc., 756 F.3d 219, 229 (2d Cir. 2014). To do so, “a plaintiff must allege that ‘she was similarly situated in all material respects to the individuals with whom she seeks to compare herself.'” Id. at 230 (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)). Allegations of “adverse actions taken against employees who are not similarly situated” do not “establish an inference of discrimination.” Littlejohn, 795 F.3d at 312. “[W]hether two employees are similarly situated” typically “presents a question of fact, rather than a legal question to be resolved on a motion to dismiss.” Daikin Am. Inc., 756 F.3d at 230. At the pleading stage, however, “it is insufficient for a plaintiff to make naked assertions of disparate treatment without factual allegations indicating those employees treated differently were similarly situated.” Sosa v. N.Y.C. Dep't of Educ., 368 F.Supp.3d 489, 514 (E.D.N.Y. 2019). The “plaintiff must still identify at least one comparator to support a minimal inference of discrimination” to survive a motion to dismiss. Goodine v. Suffolk Cnty. Water Auth., No. 14 Civ. 4514 (JS) (ARL), 2017 WL 1232504, at *4 (E.D.N.Y. Mar. 31, 2017).
“In the context of employee discipline, . . . the plaintiff and the similarly situated employee must have ‘engaged in comparable conduct,' that is, conduct of ‘comparable seriousness.'” Raspardo v. Carlone, 770 F.3d 97, 126 (2d Cir. 2014) (quoting Graham, 230 F.3d at 40). “A proposed comparator is not similarly situated ‘in all material respects' unless she engaged in all of the same misconduct as plaintiff, or at least committed the most serious of the infractions for which the plaintiff was subjected to an adverse employment action.” Risco v. McHugh, 868 F.Supp.2d 75, 100 (S.D.N.Y. 2012).
Nnebe's Disparate Discipline Allegations as to Specifications 1 and 2, i.e., those involving corporal punishment, fail to support a plausible inference of discrimination because she does not claim that any alleged comparators engaged in conduct of comparable seriousness to hers. She alleges that “White teachers such as, [] Dorosario, [] Belmonte, [] Zeuch, [] Donnelly, [] Hodgkinson, [] Cully-Heckman, [and] [] Dingfelder, who had students fight in their classes were not [disciplined] like [she] was.” (ECF No. 44 at 9 ¶ 12; see ECF No. 37 at 24-25). As the City Defendants correctly note, however, “a teacher who has a fight or fights occur in their classroom is not similarly situated to a teacher who is accused of engaging in [corporal] punishment of one or more students.” (ECF No. 32 at 22). Thus, even accepting these allegations as true, Nnebe has failed plausibly allege that the City Defendants brought Specifications 1 and 2 under circumstances giving rise to an inference of discrimination. See Jenkins v. St. Luke's-Roosevelt Hosp. Ctr., No. 09 Civ. 12 (RMB) (MHD), 2009 WL 3682458, at *8 (S.D.N.Y. Oct. 29, 2009) (granting motion to dismiss disparate disciplinary treatment claim where the alleged comparator was “not alleged to have engaged ‘in all of the same misconduct' as Plaintiff”); see also Hamilton v. DeGennaro, No. 17 Civ. 7170 (KPF), 2019 WL 6307200, at *11 (S.D.N.Y. Nov. 25, 2019) (granting summary judgment dismissing educator's discrimination claims based on alleged disparate disciplining for corporal punishment because, “[w]hile [the comparator] did indeed engage in corporal punishment, his actions were not of comparable seriousness with Plaintiff's because his did not result in physical injury to the student”). As the Court found in the R&R, despite the more liberal standard applicable to Nnebe's NYCHRL Discrimination Claim, the absence of the requisite causal connection between her race or age and the alleged discrimination is similarly fatal to this claim. Nnebe I, 2023 WL 2393920, at *14; see Thomson v. Odyssey House, No. 14 Civ. 3857 (MKB), 2015 WL 5561209, at *24 (E.D.N.Y. Sept. 21, 2015) (dismissing NYCHRL claims for failure to allege discriminatory treatment “because of” a protected characteristic), aff'd, 652 Fed.Appx. 44 (2d Cir. 2016).
In contrast, however, the Court finds that Nnebe's Disparate Discipline Allegations are sufficient to support a plausible inference of race and age discrimination with respect to Specification 3, i.e., failure to supervise. Nnebe alleges several younger White teachers “who ha[d] students fight in their classes . . . were not brought up on charges like [she] was.” (ECF No. 44 at 12 ¶ 29; see id. at 13 ¶¶ 30-32; ECF No. 59 at 20-24). Because "[a]n inference of discrimination may be supported at this stage by showing more favorable treatment of an employee not in the plaintiff's protected class[,]” Pollock v. Shea, 568 F.Supp.3d 500, 509 (S.D.N.Y. 2021), and Nnebe sufficiently alleges that she was treated differently than younger White teachers, the Court finds that the fourth element is met. See Mauro v. N.Y.C. Dep't of Educ., No. 21-2671, 2022 WL 17844438, at *2 (2d Cir. Dec. 22, 2022) (in reversing dismissal of Title VII, NYSHRL and NYCHRL race discrimination claims, finding pro se plaintiff “raised a minimal inference that the chosen comparators may have been sufficiently similar” where the plaintiff identified “other non-white probationary teachers who were not fired but who performed similarly; other non-white teachers who committed the same safety violations but who were not disciplined; and a second white probationary teacher who was also disciplined and fired for the same allegedly pretextual violations as [the plaintiff]”); Kairam v. W. Side GI, LLC, No. 18 Civ. 1005 (AT) (SDA), 2021 WL 942735, at *3 (S.D.N.Y. Mar. 12, 2021) (finding that the plaintiff plausibly alleged her age was the “but for” cause of her adverse employment action where she alleged, inter alia, that the Defendant made “an intentional and concerted effort to force older [employees] out of the company”).
The City Defendants attempt to distinguish the comparators Nnebe identifies, i.e., younger White teachers who had students fight in their class but were not disciplined (see ECF No. 44 at 12-13, ¶¶ 29-33), by arguing that Nnebe's 3020-a Charges also included two other violations involving corporal punishment, whereas Nnebe alleges that these comparators “only committed one violation” and only involving a failure to supervise (ECF No. 64 at 12). The City Defendants imply that the DOE would not have brought the 3020-a Charges against Nnebe if they contained only the allegations set out in Specification 3. While that may ultimately prove true, the Court finds that “this argument turns on an issue of fact that is inappropriate for resolution on a motion to dismiss.” Fed. Hous. Fin. Agency v. Deutsche Bank AG, 903 F.Supp.2d 285, 291 (S.D.N.Y. 2012); see Jaquez v. Dermpoint, Inc., No. 20 Civ. 7589 (JPO), 2021 WL 2012512, at *2 (S.D.N.Y. May 20, 2021) (noting that, on a motion to dismiss stage, the Court “accepts as true all well-pled factual allegations in the complaint” and should not resolve issues of fact).
* * *
Accordingly, the Court respectfully recommends that (i) the City Defendants' Motion be GRANTED as to Nnebe's Discrimination Claims based on the 2019 Reassignment and the 3020-a Charges involving Nnebe's use of corporal punishment, i.e., Specifications 1 and 2, and that (ii) the City Defendants Motion be DENIED as to Nnebe's race and age Discrimination Claims based on 3020-a Charges involving Nnebe's failure to supervise her students, i.e., Specification 3.
5. Retaliation Claims Against the City Defendants
Nnebe's Retaliation Claims are premised on the allegation that the City Defendants retaliated against her for filing the 2016 Complaint and the Administrative Complaint. (ECF Nos. 44 at 11, 17 ¶¶ 20, 55; 59 at 27-30). With respect to the 2016 Complaint, the City Defendants argue that (i) Nnebe fails to allege that the 2016 Complaint “was an act [] opposing unlawful employment activity or otherwise constituted protected activity[,]” and (ii) in any event, Nnebe “has not alleged any facts of a causal connection between” the 2016 Complaint and the 3020-a Charges. (ECF No. 50 at 28-29). While conceding that the Administrative Complaint constitutes protected activity the City Defendants argue that the subsequent PS 156 Retaliatory Acts do not constitute a “materially adverse action” necessary to support a retaliation claim. (Id. at 30).
For the reasons set forth below, the Court finds that Nnebe has failed to allege a plausible Retaliation Claim against the City Defendants.
a. Legal Standard
Retaliation claims under Title VII, the ADEA, Section 1983, and NYSHRL are analyzed under the same legal framework. See Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010) (analyzing Title VII, Section 1983, and NYSHRL retaliation claims “pursuant to Title VII principles”); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) (applying analysis to ADEA retaliation claims); Pena-Barrero v. City of New York, No. 14 Civ. 9550 (VEC), 2017 WL 1194477, at *17 (S.D.N.Y. Mar. 30, 2017), (“Retaliation claims brought pursuant to NYSHRL and Sections 1981 and 1983 are treated the same[.]”). “To state a claim for retaliation under [these statutes], a plaintiff must show: (1) she was engaged in protected activity; (2) the employer was aware of the activity; (3) the employee suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action.” Glascoe v. Solomon, No. 18 Civ. 8284 (AT), 2020 WL 1272120, at *9 (S.D.N.Y. Mar. 17, 2020). “To adequately plead causation, ‘the plaintiff must plausibly allege that the retaliation was a but-for cause of the employer's adverse action.'” Duplan, 888 F.3d at 625 (quoting Vega, 801 F.3d at 90-91). “But-for” causation “does not require proof that retaliation was the only cause of the employer's action, but only that the adverse action would not have occurred in the absence of the retaliatory motive.” Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 846 (2d Cir. 2013).
The Second Circuit has yet to hold explicitly that the but-for causation standard applies to claims under the NYSHRL, but “has implicitly applied the but-for standard to NYSHRL claims on several occasions.” Smith v. New York & Presbyterian Hosp., 440 F.Supp.3d 303, 341 n.22 (S.D.N.Y. 2020) (collecting cases). “District courts within this Circuit . . . have also applied the but-for standard to NYSHRL claims.” Id. (collecting cases).
The elements of a prima facie retaliation claim under the NYCHRL are “identical” to its federal and state counterparts, “except that the NYCHRL employs a broader standard of an ‘adverse employment action[.]'” Smith v. City of New York, 385 F.Supp.3d 323, 346 (S.D.N.Y. 2019). “Under the NYCHRL, . . . the plaintiff need only plead and prove that something happened that would be reasonably likely to deter a person from engaging in protected activity.” Zuckerman v. GW Acquisition LLC, No. 20 Civ. 8742 (VEC), 2021 WL 4267815, at *17 (S.D.N.Y. Sept. 20, 2021). Additionally, “[t]he higher but-for causation standard does not apply to NYCHRL retaliation claims. To survive a motion to dismiss, a plaintiff need only allege that retaliatory animus played some role in the employer's decision.” Cardwell v. Davis Polk & Wardwell LLP, No. 19 Civ. 10256 (GHW), 2020 WL 6274826, at *37 (S.D.N.Y. Oct. 24, 2020).
“Protected activity includes any action that protests or opposes statutorily prohibited discrimination.” Batiste v. City Univ. of New York, No. 16 Civ. 3358 (VEC), 2017 WL 2912525, at *10 (S.D.N.Y. July 7, 2017). Protected activity “often takes the form of filing a lawsuit or formal complaint with an agency[,]” but “may also take the form of less formal protests, such as making complaints to management, writing critical letters to customers, or expressing support of coworkers who have filed charges.” Little v. Nat'l Broad. Co., 210 F.Supp.2d 330, 384 (S.D.N.Y. 2002); see Giscombe v. N.Y.C. Dep't of Educ., 39 F.Supp.3d 396, 401 (S.D.N.Y. 2014) (“Informal complaints to supervisors, instituting litigation, or filing a formal complaint are protected activities ....”). “The complaints, however, whether formal or informal, must be about some act that the employee reasonably and in good faith believes is unlawful under the anti-discrimination laws.” Batiste, 2017 WL 2912525, at *10. “Complaining about general unfairness, unaccompanied by any indication that plaintiff's protected class status caused the unfairness, does not qualify as protected activity.” Id. (citing Rojas v. Roman Cath. Diocese of Rochester, 660 F.3d 98, 107-08 (2d Cir. 2011)).
“An adverse employment action in the context of retaliation is different than in the context of discrimination.” Sosa, 368 F.Supp.3d at 517. For retaliation, “an adverse employment action is any action that could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Vega, 801 F.3d at 90; see, e.g., Patane, 508 F.3d at 116 (deeming plaintiff's allegations that employers failed to assign her work to induce her to quit her job to be an adverse employment action because it would cause someone to “think twice” about engaging in protected activity). This “covers a broader range of conduct than does the adverse-action standard for claims of discrimination[.]” Vega, 801 F.3d at 90 (finding that conduct that did not constitute an adverse employment action for discrimination claim did constitute an adverse employment action for retaliation claim).
b. Application
With respect to the Retaliation Claims based on the 2016 Complaint, the Court finds Nnebe's allegations are deficient for the same reasons articulated in the R&R: she fails to plead any facts suggesting that this complaint was “about some act that [she] reasonably and in good faith believe[d] is unlawful under the anti-discrimination laws.” Nnebe I, 2023 WL 2393920, at *15 (quoting Batiste, 2017 WL 2912525, at *10. Nnebe alleges only that she “filed a grievance against [Brarry-Grant] for an improper observation report[,]” i.e., the 2016 Report. (ECF No. 44 at 11 ¶ 20). “[I]n the absence of allegations that [Nnebe] was complaining about unlawful and discriminatory conduct, rather than mere workplace difficulties[,]” these complaints “do not constitute protected activity.” Mitchell, 2021 WL 8013770, at *11; see Rojas, 660 F.3d at 107-08 (“[I]mplicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiff's [complaint] was directed at conduct prohibited by” law); Lucio v. N.Y.C. Dep't of Educ., 575 Fed.Appx. 3, 6 n.2 (2d Cir. 2014) (affirming dismissal of retaliation claim where the plaintiff “pled no facts that tend to suggest that her employer could have been aware that in complaining of [defendant]'s ‘treatment,' she was opposing a discriminatory practice prohibited by NYCHRL”); Batiste, 2017 WL 2912525, at *11 (dismissing retaliation claim where the plaintiff's allegations failed to “suggest[] that anything she said would have alerted a reasonable person that she was complaining about discrimination”).
In the R&R, the Court noted that “Nnebe's Retaliation Claims based on the 2016 Complaint [were] especially dubious because it appear[ed] that nearly three years lapsed between this complaint and the earliest alleged adverse employment action, i.e., the 2019 Reassignment.” NnebeI, 2023 WL 2393920, at *15 n.12 (noting that, although Nnebe [did] not specify when she lodged the 2016 Complaint, . . . it is reasonable to infer that she did so around the time that Barry-Grant issued the 2016 Report that was the subject of the complaint”). In the Amended Complaint, Nnebe confirms the Court's inference, by alleging that she filed the 2016 Complaint “in 2016.” (ECF No. 44 at 11 ¶ 19). While the Second Circuit has “not drawn a bright line to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action[,]” Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009), many courts in this Circuit “have held that periods of two months or more defeat an inference of causation.” Ragin v. E. Ramapo Cent. Sch. Dist., No. 05 Civ. 6496 (PGG), 2010 WL 1326779, at *24 (S.D.N.Y. Mar. 31, 2010); see Zabar v. N.Y.C. Dep't of Educ., No. 18 Civ. 6657 (PGG), 2020 WL 2423450, at *7 (S.D.N.Y. May 12, 2020) (collecting cases in which courts noted that the passage of two to three months between protected activity and adverse employment action defeated inference of causation). Accordingly, even if Nnebe had alleged that the 2016 Complaint included allegations of discrimination, her Retaliation Claims based on this complaint would still fail for lack of any plausible casual connection to an adverse action.
Nnebe's allegations concerning the Administrative Complaint are equally deficient. Although the Administrative Complaint was protected activity, Little, 210 F.Supp.2d at 384, and Nnebe now alleges that the PS 156 Principal was aware of it, (ECF No. 44 at 17 ¶ 56), the Court agrees with the City Defendants that the PS 156 Retaliatory Acts do not rise to the level of an adverse action required to state a retaliation claim under the applicable statutes. Nnebe alleges that: (i) in September 2020, the PS 156 Principal “turned only [Nnebe's] desk to face the wall like a criminal,” and “told [Nnebe] that [she] could sit in another chair without a desk[;]” (ii) on September 8, 2020, she “sent [Nnebe] to do a bulletin board for a class, even though the paraprofessional responsible for the board was not doing anything” and the “tasks were demeaning based on [Nnebe's] experience” and “years of service[;]” (iii) she “further demeaned [Nnebe] by having [Nnebe] ask school aides for instructions to put up signs around the school[;]” she “would also embarrass [Nnebe] at team meetings by asking [her] to share [her] work, [] knowing that [Nnebe] was not assigned any work to do[;]” (iv) on September 14, 2020, she “asked [Nnebe] to provide a doctor['s] note to be allowed to wear screen protector glasses for medical purposes, although [Nnebe has] been wearing screen protector glasses since [she] started at ¶ 156[;]” and (v) on September 21, 2020, she “tried to take a 1/2 CAR day from [Nnebe] when [she] only needed 30 minutes for a doctor appointment[.]” (ECF No. 44 at 17-18 ¶¶ 59-62). Although the Court construes these allegations liberally, “it is not plausible that any reasonable employee would be deterred by such trivial workplace slights from opposing legitimate acts of discrimination.” Jaeger v. N. Babylon Union Free Sch. Dist., 191 F. pp. 3d 215, 235 (E.D.N.Y. 2016) (finding allegations that a principal excessively monitored an employee's attendance, accused the employee of lying in front of other employees, and accusing the employee of leaving school premises without authorization were each “a classic[] example of a de minimis workplace grievance that cannot rise to the level of an actionable adverse employment action” to support a retaliation claim); see Dearden v. GlaxoSmithKline LLC, No. 15 Civ. 7628, 2017 WL 4084049, at *8 (S.D.N.Y. Sept. 14, 2017) (finding that the plaintiff failed to plead adverse employment action in support of retaliation claim based on allegations that her employer “sent [her] rude emails, complained about [her] work performance, micromanaged [her] and [her] schedule, required [her] to engage in product knowledge assessments at inconvenient times, and canceled ride-alongs with [her]”).
* * *
Accordingly, the Court respectfully recommends that the City Defendants' Motion be GRANTED as to Nnebe's Retaliation Claims.
6. Hostile Work Environment Claims Against the City Defendants
In her HWE Claims, Nnebe alleges that the City Defendants created a hostile work environment based on her race, age, and national origin. (ECF Nos. 44 at 3-5; 59 at 24-27). The City Defendants argue that Nnebe's HWE Claims under Title VII, the ADEA, Section 1983, and the NYSHRL (the “Non-NYCHRL HWE Claims”) fail because she “does not allege any facts of discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the [her] employment and create an abusive working environment.” (ECF No. 50 at 25). With respect to her NYCHRL HWE Claim, the City Defendants argue that Nnebe fails “to plausibly allege any facts from which a reasonable inference could be drawn either that a motivation for any of the City Defendant's [sic] behavior was [Nnebe]'s age, race, color, or national origin[.]” (Id. at 26).
For the reasons set forth below, the finds that Nnebe's Non-NYCHRL HWE Claims fail as a matter of law, but that she has plausibly alleged a NYCHRL HWE Claim.
a. Legal Standard
The Non-NYCHRL HWE Claims are analyzed under a similar legal framework. See Zuckerman, 2021 WL 4267815, at *9 (“Hostile work environment claims under Title VII and the NYSHRL are governed by the same standards of liability.”); Alexander v. N.Y.C. Dep't of Educ., No. 19 Civ. 7023 (AJN), 2020 WL 7027509, at *7 (S.D.N.Y. Nov. 30, 2020) (“Hostile work environment claims under the ADEA, the NYSHRL, and [Section] 1983 are assessed under the same standards.”). “A hostile work environment claim [under these statutes] requires a showing [i] that the harassment was ‘sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,' and [ii] that a specific basis exists for imputing the objectionable conduct to the employer.” Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d Cir. 1997)). “In addition, [a] [p]laintiff must demonstrate that [s]he ‘was subjected to the hostility because of [her] membership in a protected class.'” Karupaiyan v. CVS Health Corp., No. 19 Civ. 8814 (KPF), 2021 WL 4341132, at *24 (S.D.N.Y. Sept. 23, 2021) (quoting Brennan v. Metro. Opera Ass'n, 192 F.3d 310, 318 (2d Cir. 1999)).
To constitute a hostile work environment, “[t]he incidents complained of must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.” Littlejohn, 795 F.3d at 321. “Although a continuing pattern of hostile or abusive behavior is ordinarily required to establish a hostile environment, a single instance can suffice when it is sufficiently egregious.” Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 136 (2d Cir. 2001). “Courts analyzing hostile work environment claims 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 an employee's work performance.'” Whitley v. Montefiore Med. Grp., No. 13 Civ. 4126 (LTS), 2016 WL 1267788, at *9 (S.D.N.Y. Mar. 30, 2016) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). “This inquiry has both objective and subjective prongs: ‘the misconduct must be severe or pervasive enough to create an objectively hostile or abusive work environment, and the victim must also subjectively perceive that environment to be abusive.'” Id. (quoting Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003)). “Severity is [the] hallmark of a hostile work environment claim[,]” which is “not intended to promote or enforce civility, gentility or even decency.” Fernandez v. City of New York, No. 12 Civ. 2125 (RWS), 2012 WL 2402642, at *4 (S.D.N.Y. June 26, 2012).
“The standard for maintaining a hostile work environment claim is lower under the NYCHRL.” Bermudez, 783 F.Supp.2d at 579. “The NYCHRL does not differentiate between discrimination and hostile work environment claims; rather, both are governed by N.Y.C. Admin. Code § 8-107(1)(a)[,]” Russo, 972 F.Supp.2d at 449-50, and “are analyzed under the same standard.” Bacchus v. N.Y.C. Dep't of Educ., 137 F.Supp.3d 214, 246 (E.D.N.Y. 2015). Simply put, “[u]nder the NYCHRL, a plaintiff need not establish that the conduct was severe or pervasive, only that ‘she has been treated less well than other employees because of her'” membership in a protected class. Russo, 972 F.Supp.2d at 450.
b. Application
The Court finds that the Non-NYCHRL HWE Claims are not plausible. With respect to her these claims, Nnebe “alleges only discrete instances of conduct by Defendants that, even if proven to be true, would not rise to the level of a workplace permeated with discriminatory intimidation, ridicule, or insult.” Everett v. N.Y.C. Dep't of Educ., No. 21 Civ. 7043 (JPC), 2022 WL 2342693, at *8 (S.D.N.Y. June 29, 2022) (“Everett I”). Nnebe bases her HWE Claims on the 2016 Report, the 2019 Reassignment, her removal from the PPT Email List, the 3020-a Charges, and the PS 156 Retaliatory Acts. (ECF No. 59 at 26-27). With respect to her claims based on the 2016 Report, as discussed above, these allegations are time-barred . (See § III.B.3, supra). In any event, each of these acts “represent distinct instances that are not sufficiently ‘continuous and concerted' nor “severe or pervasive” to establish a hostile work environment.” Everett I, 2022 WL 2342693, at *8 (S.D.N.Y. June 29, 2022) (citing Boyar v. Yellen, No. 21-507, 2022 WL 120356, at *3 (2d Cir. Jan. 13, 2022) (affirming dismissal of HWE claim where the plaintiff alleged that his supervisor “(1) told him to go back to his desk or she would ‘[w]ring [his] neck'; (2) yelled at him [and] demand[ed] his employee identification number ‘now'; (3) ignored him at a meeting; (4) yelled at him ‘very loudly'; and (5) told him he had 90 minutes to complete two certification exams, when he had 60 minutes to complete each”); see Brown v. N.Y.C. Dep't of Educ., 2021 WL 4943490, at *12 (“[C]ourts in this Circuit have consistently held that allegations of even constant reprimands and work criticism by themselves are not sufficient to establish a hostile environment claim.”); Rettino, 2020 WL 4735299, at *4 (finding the plaintiff failed to allege a plausible HWE claims based on, inter alia, “false Section 3020-a charges” for alleged corporal punishment); Gibson v. Wyeth Pharms., Inc., No. 07 Civ. 946 (LTS), 2011 WL 830671, at *11 (S.D.N.Y. Mar. 9, 2011) (finding that allegations of explicitly racial comments, three-day suspension, forced overtime, and written warning were insufficient to establish hostile work environment).
While Nnebe has not sufficiently plead the severe or pervasive conduct required to state a claim for HWE claims under the federal and state statutes, at this stage she has alleged facts that satisfy the more lenient pleading standard for a hostile work environment claims under the NYCHRL. Specifically, as discussed above, she has plausibly alleged that that she was treated worse than similarly situated younger White employees with respect to the enforcement of DOE disciplinary standards concerning the failure to supervise students, i.e., Specification 3. (See § III.B.4.b, supra). “Such allegations are sufficient to state a claim” for hostile work environment under the NYCHRL. Gurley v. David H. Berg & Assocs., No. 20 Civ. 9998 (ER), 2022 WL 309442, at *5 (S.D.N.Y. Feb. 2, 2022) (declining to dismiss NYCRHL HWE claim where the plaintiff alleged that “she was paid less than other non-Black employees and that she was treated worse than Lee, a similarly situated Asian employee, in terms of how various policies were enforced against her”); see Everett II, 2023 WL 5629295, at *13 (“[B]because the Court has determined that [the defendant's] alleged conduct was sufficient to state a claim for discrimination under the Title VII standard, it necessarily is sufficient to state a claim under the more lenient NYCHRL standard for . . . a hostile work environment.”).
* * *
Accordingly, the Court respectfully recommends that the City Defendants' Motion be GRANTED as to Nnebe's Non-NYCHRL HWE Claims but DENIED as to Nnebe's NYCHRL HWE Claim.
7. Monell Claim Against the DOE
To support her Monell Claim, Nnebe alleges that she “believe[s] the DOE has an unwritten policy of bringing false 3020-a charges against older teachers, requesting that they retire in exchange for dropping the 3020-a charges[.]” (ECF No. 44 at 18 ¶ 63). Nnebe claims that the DOE asked her retire in exchange for dropping the 3020-a Charges, and claims that she “was told” that “[a]nother teacher with 27 years in the system was also being asked to retire in exchange for having her 3020-a charges dropped[.]” (Id. at 18 ¶¶ 64-65). The City Defendants argue that Nnebe has failed to allege municipal liability under Section 1983 against the DOE, or against Barry-Grant or Olivo in their official capacities, because she “has not identified the existence of an official policy or custom that led to any constitutional injury.” (ECF No. 50 at 32).
a. Legal Standard
“The elements of a Monell claim are (1) a municipal policy or custom that (2) causes the plaintiff to be subjected to (3) the deprivation of a constitutional right.” Agosto v. N.Y.C. Dep't of Educ., 982 F.3d 86, 97 (2d Cir. 2020) (citing Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)). A government should only be held responsible “when, and only when, their official policies cause their employees to violate another person's constitutional rights.” City of St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988).
A plaintiff asserting “[Section] 1981 claims against the City, or against the individual City defendants in their official capacities . . . [must] establish that their actions ‘were performed pursuant to a municipal policy or custom.'” Elias v. City of New York, No. 07 Civ. 10260 (TPG), 2009 WL 1528530, at *4 (S.D.N.Y. May 29, 2009) (dismissing complaint with prejudice) (quoting Patterson, 375 F.3d at 226). A municipality may be liable for the actions of a single official, “but only if that official is someone ‘whose edicts or acts may fairly be said to represent official policy' for the entire municipality.” Agosto, 982 F.3d at 98 (quoting Monell, 436 U.S. at 694).
b. Application
The Court finds that Nnebe's failure to identify a municipal policy that led to any purported constitutional violation is fatal to her Monell Claim. As discussed in the R&R, Nnebe cannot predicate Monell liability on acts of discipline and school administration by Barry-Grant or Olivo because the Second Circuit recognizes that only the chancellor of the DOE “appears to be the final policymaker for the [DOE] with respect to teacher discipline and school administration[.]” Agosto, 982 F.3d at 99, 101 (examining New York Education Laws and holding that “a New York City principal does not have municipal policymaking authority for Monell purposes”). And despite Nnebe's belief based on her own experience that the “the DOE has an unwritten policy of bringing false 3020-a charges against older teachers,” (ECF No. 44 at 18 ¶ 63), “Monell liability does not derive from individual incidents of wrongdoing by non-policymakers.” Treadwell v. Cnty. of Putnam, No. 14 Civ. 10137 (KMK), 2016 WL 1268279, at *4 (S.D.N.Y. Mar. 30, 2016) (dismissing Monell claim based on “an isolated series of incidents between Plaintiff and [municipal] employees that was the cause of her alleged constitutional injuries”); see Triano v. Town of Harrison, NY, 895 F.Supp.2d 526, 532 (S.D.N.Y. 2012) (“[A] custom or policy cannot be shown by pointing to a single instance of unconstitutional conduct by a mere employee of the municipality.”).
Accordingly, the Court respectfully recommends that the City Defendants' Motion as to Nnebe's Section 1983 Claims against the DOE be GRANTED.
8. NYSHRL and NYCHRL Aiding and Abetting Claims Against Werner
Werner argues that contrary to Judge Caproni's directive in the O&O, Nnebe's “Amended Complaint fails to make any factual allegations whatsoever concerning the specific discriminatory and or retaliatory conduct engaged in by Defendant Werner.” (ECF No. 56 at 7). In her Opposition, Nnebe again argues that Werner, who did not exercise supervisory authority over her, is subject to “aider-and-abettor liability” under the NYSHRL and NYCHRL based on the same conduct she alleged in the Complaint, i.e., that he (i) “contributed to undermine [her] during” the Investigation; (ii) “was working together with [] Olivo to push [Nnebe] out of the school, by persuading [Nnebe] to not get the union involved and telling [her] that nothing will happen, and that going to the union will make matters worse[;]” (iii) “refused to help [Nnebe] write a grievance on time and guided [her] to write a response to [] Olivo in a way that enabled her to use it to bring charges against” Nnebe; and (iv) disclosed the 3020-a Charges to his co-teacher, “although he was supposed to keep this case confidential, which damaged [Nnebe's] reputation.” (ECF No. 59 at 31-32).
a. Legal Standard
The NYSHRL and NYCHRL “provide that ‘[i]t shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or attempt to do so.'” Sanchez v. L'Oreal USA, Inc., No. 21 Civ. 3229 (VEC), 2022 WL 1556402, at *5 (S.D.N.Y. May 17, 2022) (quoting N.Y. Exec. § 296(6)); see N.Y.C. Admin. Code § 8107(6)). To state a claim for aiding and abetting discrimination under the NYSHRL and NYCHRL, “a plaintiff must allege that the defendant actually participated in the unlawful conduct such that ‘the aider and abettor share the intent or purpose of the principal actor.'” Everett II, 2023 WL 5629295, at *12 (quoting Rahman v. Limani 51, LLC, No. 20 Civ. 6708 (KMW), 2022 WL 3927814, at *7 (S.D.N.Y. Aug. 31, 2022); see Bautista v. PR Gramercy Square Condo., 642 F.Supp.3d 411, 428 (S.D.N.Y. 2022); Sanchez, 2022 WL 1556402, at *5.
b. Application
The Court finds that Nnebe has failed to plausibly allege Aiding and Abetting Claims against Werner. Even assuming her allegations are sufficient to suggest that Werner “actually participated” in the alleged discriminatory conduct, Nnebe fails to set forth any facts suggesting that Werner “shared the intent or purpose of any principal actor.” Everett II, 2023 WL 5629295, at *12. As a result, Nnebe fails to state any plausible claim against Werner. Id. at *13; see McHenry v. Fox News Network, LLC, 510 F.Supp.3d 51, 79 (S.D.N.Y. 2020) (dismissing NYCHRL aider and abettor claims against an individual defendant where the plaintiff failed to allege that the defendant “shared a discriminatory or retaliatory purpose with” the primary actor); cf. Butts v. N.Y.C. Dep't of Educ., No. 16 Civ. 5504 (NGG) (RML), 2018 WL 4725263, at *17 (E.D.N.Y. Sept. 28, 2018) (“The court is not aware of any case law suggesting that, absent discriminatory or retaliatory animus, a union representative can be considered an aider-and-abettor for failing to take proactive steps (e.g., filing a grievance) to prevent a potential adverse employment action.”).
Accordingly, the Court respectfully recommends that Werner's Motion be GRANTED and the Aiding and Abetting Claims against him be DISMISSED.
* * *
In sum, after evaluating the Amended Complaint against Judge Caproni's specific instructions to Nnebe regarding what she needed to allege to survive dismissal, the Court finds that Nnebe has sufficiently alleged facts with respect to Specification 3 “from which the Court could reasonably infer that the City Defendants were motivated by [race- and age-based] discriminatory animus . . . when they served Nnebe with Section 3020-a charges.” Nnebe II, 2023 WL 2088526, at *2. The Court finds that Nnebe has failed, however, to allege facts plausibly suggesting that (i) the 2019 Reassignment was motivated by discriminatory animus, (ii) the 2016 Complaint was “about an act she believed was unlawful under the anti-discrimination laws[;]” (iii) “Defendants engaged in continuous and concerted, as opposed to discrete, acts of hostility toward Nnebe because of any of her protected characteristics[;] (iv) “any constitutional violation suffered by Nnebe was the result of a municipal policy[;]” or (v) “Werner contributed to acts of discrimination against Nnebe.” Id. at *2-3.
Accordingly, the Court respectfully recommends that the Motions be GRANTED as to Nnebe's (i) claims against the City; (ii) NYSHRL and NYCHRL Claims against the DOE; (iii) Title VII and ADEA Claims that accrued prior to August 9, 2019 and her Section 1983, NYSHRL, and NYCHRL Claims that accrued prior to May 11, 2019; (iv) national-origin based Discrimination Claims; (v) Discrimination Claims based on the 2019 Reassignment and the 3020-a Charges involving Nnebe's use of corporal punishment, i.e., Specifications 1 and 2; (vi) Retaliation Claims; (vii) Non-NYCHRL HWE Claims; (viii) 1983 Claims against the DOE; and (iv) Aiding and Abetting Claims against Werner, but that the City Defendants' Motion be DENIED as to Nnebe's (i) race- and agebased Discrimination Claims based on the 3020-a Charges involving Nnebe's failure to supervise her students, i.e., Specification 3, and (ii) NYCHRL HWE Claims.
9. Collateral Estoppel
Defendants argue that, with respect to her Section 1983, NYSHRL, and NYCHRL claims, Nnebe “is collaterally estopped from denying the factual findings made by the [] Hearing Officer.” (ECF No. 50 at 15; see ECF No. 56 at 13).Despite making this argument, Defendants do not seek dismissal of any claims based on collateral estoppel. Nnebe responds that, “even if the Hearing Officer's substantiation of some of the disciplinary charges against [her] may be evidence of the DOE defendants' non-discriminatory reasons for the initiation of part of the charges against [her], the issue of whether those non-discriminatory reasons [were] pretextual, i.e., whether a discriminatory motive played some part in motivating those adverse actions, is not precluded and remains a genuine dispute of a material fact raising an issue for trial.” (ECF No. 59 at 13-14).
Defendants concede that Nnebe's “Title VII and ADEA claims are not subject to issue preclusion by the doctrine of collateral estoppel.” (ECF No. 50 at 14 n.3 (collecting cases)).
The Court finds that Defendants' assertion of collateral estoppel is premature at this stage. Defendants are correct that, “[w]here a § 3020-a proceeding finds a plaintiff is guilty of certain misconduct, a plaintiff is precluded from both disputing the facts of those same incidences of misconduct and litigating the issue of whether a defendant had a legitimate reason to discipline a plaintiff.” Clarke-Green v. N.Y.C. Dep't of Educ., No. 17 Civ. 778 (EK) (VMS), 2022 WL 4643385, at *20 (E.D.N.Y. Aug. 2, 2022) (on summary judgment, finding that the plaintiff was “precluded from arguing in this Court that the performance issues described in disciplinary letters issued to her file on March 16, 2016, and March 30, 2016, were false and fabricated, as the hearing officer in [the] Plaintiff's § 3020-a hearing considered and rejected this argument”), adopted by, 2022 WL 4662010 (E.D.N.Y. Sept. 30, 2022). At the pleading stage, however, the Court's role is to determine the sufficiency of the allegations, and not to resolve factual disputes. Defendants may raise this argument at the appropriate time. See Homar v. Am. Home Mortg. Servicing, Inc., No. 9 Civ. 7245 (FED), 2011 WL 13486328, at *2 (S.D.N.Y. Mar. 4, 2011) (“Defendants' apparent claim that collateral estoppel precludes this amendment is premature, as such an affirmative defense is more properly pled in Defendants' answer and may then be the subject of motion practice.”).
C. Leave to Amend
Nnebe requests “leave to file a second amended complaint to address any deficiencies identified by the Court.” (ECF No. 59 at 10). “Leave to amend should be ‘freely give[n] . . . when justice so requires.'” Trujillo, 2016 WL 10703308, at *21 (quoting Fed.R.Civ.P. 15(a)(2)). “District courts ‘ha[ve] broad discretion in determining whether to grant leave to amend[.]"' Id. (quoting Gurary v. Winehouse, 235 F.3d 793, 801 (2d Cir. 2000)). District courts may properly deny leave to amend if there exists “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008).
As the Court discussed in the R&R, leave to amend is inappropriate where “[t]he defects in the[] claims are not the result of ‘inadequate[ ] or inartful[ ]' pleading, and are not susceptible to cure.” Trujillo, 2016 WL 10703308, at *21 (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)); see Nnebe I, 2023 WL 2393920, at *20. This principle applies to Nnebe's claims against the City, which is not a proper party, and her NYSHRL and NYCHRL Claims against the DOE, for which she failed to comply with the notice-of-claim requirement. Accordingly, amendment of these claims would be futile.
With respect to the claims the Court has found were inadequately pled, the fact that Nnebe “has already had an opportunity to amend, with the benefits of having heard [the defendants'] arguments why [her] pleading failed to state a claim, mitigates against giving [her] a third attempt to state a valid claim.” Tsinberg v. N.Y., No. 20 Civ. 749 (PAE) (SLC), 2021 WL 1536659, at *16 (S.D.N.Y. Jan. 22, 2021), adopted by, 2021 WL 1146942 (S.D.N.Y. Mar. 25, 2021); see Green v. Niles, No. 11 Civ. 1349 (PAE), 2012 WL 987473, at *7 (S.D.N.Y. Mar. 23, 2012) (denying leave to amend where plaintiff's amended complaint “was undertaken after [he] had gained a preview of defendants' arguments in support of a motion to dismis[s]” and “the Court's identification of factual deficiencies in [the plaintiff's] pre-existing pleading”). Despite the Court's guidance in Nnebe I and Nnebe II about the types of factual allegations Nnebe needed to include in the Amended Complaint to state plausible claims, Nnebe has not done so. See Nnebe II, 2023 WL 2088526, at *2-3; Nnebe I, 2023 WL 2393920, at *8-19. The Court has now conducted a second comprehensive analysis and found substantive deficiencies in Nnebe's Retaliation, Non-NYCHRL HWE, Monell, and Aiding and Abetting Claims, as well as her Discrimination Claims other than those based on her race or age and concerning Specification 3, and is not persuaded that a third attempt to restate these claims would be successful. See Brady v. IGS Realty Co. L.P., No. 19 Civ. 10142 (PAE), 2020 WL 5414683, at *13 (S.D.N.Y. Sept. 8, 2020) (denying leave to amend as futile), aff'd, 2021 WL 4302737 (2d Cir. Sept. 22, 2021), and aff'd sub. nom. Brady v. Friedlander, 2021 WL 5872264 (2d Cir. Dec. 13, 2021).
In addition, Nnebe has not provided in her Opposition “any proposed amended pleading or indicat[ion of] what [she] might allege to cure the deficienc[ies] identified in the” Amended Complaint, providing further support for the conclusion that “leave to amend must be denied as futile.” In re WorldCom, Inc. Secs. Litig., 303 F.Supp.2d 385, 391 (S.D.N.Y. 2004). Finally, courts in this District “routinely deny” granting leave to amend that would allow a plaintiff a “‘third bite at the apple[.]"' Binn v. Bernstein, No. 19 Civ. 6122 (GHW) (SLC), 2020 WL 4550312, at *34 (S.D.N.Y. July 13, 2020) (collecting cases), adopted by, 2020 WL 4547167 (S.D.N.Y. Aug. 6, 2020).
Accordingly, the Court respectfully recommends that Nnebe's Request be DENIED as to Nnebe's: (i) Retaliation Claims; (ii) Non-NYCHRL-HWE Claims; (iii) Monell Claim; (iv) Aiding and Abetting Claims; (v) national origin-based Discrimination Claims; (vi) Discrimination Claims concerning the 2019 Reassignment; and (vii) race- and age-based Discrimination Claims concerning Specifications 1 and 2.
IV. CONCLUSION
For the reasons set forth above, the Court respectfully recommends that:
1. The City Defendants' Motion be GRANTED IN PART and DENIED IN PART as follows:
a. GRANTED as to Nnebe's (i) claims against the City; (ii) NYSHRL and NYCHRL Claims against the DOE; (iii) Title VII and ADEA Claims that accrued prior to August 9, 2019 and her Section 1983, NYSHRL, and NYCHRL Claims that accrued prior to May 11, 2019; (iv) national-origin based Discrimination, Claims; (v) Discrimination Claims based on the 2019 Reassignment and the 3020-a Charges involving Nnebe's use of corporal punishment, i.e., Specifications 1 and 2; (vi) Retaliation Claims; (vii) Non-NYCHRL HWE Claims; and (viii) 1983 Claims against the DOE, and that these claims be DISMISSED WITH PREJUDICE;
b. DENIED as to Nnebe's (i) race- and age-based Discrimination Claims based on the 3020-a Charges involving Nnebe's failure to supervise her students, i.e., Specification 3, and (ii) NYCHRL HWE Claims; and
2. Werner's Motion be GRANTED, and the Aiding and Abetting claims against Werner be DISMISSED WITH PREJUDICE;
3. Nnebe's Request for leave to amend her (i) Retaliation Claims, (ii) Non-NYCHRL-HWE Claims, (iii) Monell Claim, (iv) Aiding and Abetting Claims, (v) national origin-based Discrimination Claims, (vi) Discrimination Claims concerning the 2019 Reassignment, and (vii) race- and age-based Discrimination Claims concerning Specifications 1 and 2, be DENIED.
Defendants shall promptly serve a copy of this Report and Recommendation on Nnebe, and file proof of service on the docket by November 13, 2023.
The Clerk of Court is respectfully to mail a copy of this Report and Recommendation to Nnebe.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) 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 when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Caproni.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Nnebe does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, she may request copies from Defendants' counsel. See Local Civ. R. 7.2.