Opinion
1:19-CV-6327 (CM)
11-06-2019
BRIAN FORD, Plaintiff, v. THE BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NY a/k/a NYCBOE, NYCDOE, Defendant(s).
ORDER TO AMEND :
Plaintiff, appearing pro se, brings this action under the Age Discrimination in Employment Act of 1967 ("ADEA"), the New York State and City Human Rights Laws, and the "New York State 'Whistleblower' Statute." He sues his former employer, the New York City Board of Education ("DOE"). He alleges that DOE has discriminated against him because of his age and has retaliated against him. He seeks damages and injunctive relief. By order dated October 29, 2019, the Court granted Plaintiff's request to proceed without prepayment of fees, that is, in forma pauperis. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date of this order.
What used to be known as the "Board of Education" is now known as the "Department of Education." See Nacipucha v. City of New York, 18 Misc. 3d 846, 850 (S. Ct. Bronx Cnty. 2008) (discussing changes to N.Y. Education Law and bylaws of Board of Education).
STANDARD OF REVIEW
The Court must dismiss an in forma pauperis complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest," Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted, emphasis in original). But the "special solicitude" in pro se cases, id. at 475 (citation omitted), has its limits - to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
The United States Supreme Court has held that under Rule 8, a complaint must include enough facts to state a claim for relief "that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). But it does not have to accept as true "[t]hreadbare recitals of the elements of a cause of action," which are essentially just legal conclusions. Id. (citing Twombly, 550 U.S. at 555). After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id. at 678-79.
BACKGROUND
The following facts are taken from Plaintiff's complaint and its attachments, but also, especially as to the procedural history of Plaintiff's earlier litigation, from a decision of the New York Supreme Court, New York County - Matter of Ford v. Bd. of Educ. of the City Sch. Dist. of the City of N.Y., 2019 NY Slip Op 50009(U), ¶ 1, 62 Misc. 3d 1206(A) (S. Ct. N.Y. Cnty. 2019).
Plaintiff was born in 1958. He was a DOE teacher between 1995 and either June 9, 2017, or January 29, 2018, when DOE terminated his employment. His last DOE teaching assignment was at the Bronx Guild High School ("BGHS"). He has observed a pattern of DOE teachers over 40 years of age being targeted for termination. He took a sabbatical in the Spring of 2015; his principal opposed it but he "was able to go over her head to have it granted." (ECF 2, p. 10.) During the 2015-16 and 2016-17 school years, Plaintiff "raised issues in meetings" and "filed a complaint about the Special Education practices" at BGHS. (Id.) "Prior to taking that [s]abbatical, [Plaintiff] had not received any negative evaluations for classroom observation and, with a single exception, had received either [e]ffective [r]atings or the highest rating available for every year he had taught in the New York system." (Id. p. 10-11.) And "[w]ith exception of one year[,] . . . during which he filed a complaint against the school for not following [s]pecial [education] regulations, he had uniformly high ratings . . . ." (Id. p.8.) It appears that DOE relied on at least some of Plaintiff's negative performance evaluations to terminate his employment.
DOE served disciplinary charges against Plaintiff in June 2017. See Matter of Ford, 62 Misc. 3d 1206(A), at *4. Plaintiff alleges that he was removed from the classroom on January 29, 2018 (ECF 2, p. 11), or on June 9, 2017 ( id. p. 19).
In June 2017, DOE initiated disciplinary proceedings against Plaintiff under New York Education Law § 3020-a for alleged "incompetent and inefficient service, neglect of duty, and unwillingness and/or inability to follow procedures and carry out normal duties during the 2015-2016 and 2016-2017 school years." Matter of Ford, 62 Misc. 3d 1206(A), at *4 (internal quotation marks omitted). DOE alleged that the charges constituted just cause for termination. Id.
Under the mandatory arbitration provisions of Section 3020-a, a hearing was held before a hearing officer over the course of eleven days from September 26, 2017, to November 29, 2017. Id. Both parties were represented by counsel and had the opportunity to call and examine witnesses, submit evidence, and make arguments. Id.
After considering all the evidence, the hearing officer issued a 69-page Opinion and Award, sustaining most, but not all, of the charges against Plaintiff, and finding just cause for the termination of his employment. Id. The hearing officer found that Plaintiff was not an effective teacher and was given a fair opportunity to improve but did not and would not with additional professional development, and that termination of Plaintiff's employment was the appropriate penalty. Id. at *5.
Plaintiff then sought judicial review of the hearing officer's decision in the New York Supreme Court, New York County, under Article 75 of the New York Civil Practice Law and Rules. On review, the state court noted that Article 75 provides for limited review - an award may be vacated only on a showing of misconduct, bias, excess of power, or procedural defects. Id.; see N.Y.C.P.L.R. § 7511(b)(1)(i-iv). In addition, the hearing officer's determination must be "in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of" Article 78 of the New York Civil Practice Law and Rules. Id. (citation omitted).
The state court first rejected Plaintiff's contention that the hearing officer was biased, finding "no evidence of bias on the part of the Hearing Officer and no evidence of incompetency." Id. at *6. It then concluded that the hearing officer carefully considered all the evidence and that his decision was adequately supported as to some charges, including that Plaintiff's classroom was not properly managed and that Plaintiff had not fully implemented directions for improvement. Id. at *7. The court found, however, that the penalty of termination was, under the circumstances, "shocking to one's sense of fairness," considering that Plaintiff "taught for 18 years, with no prior disciplinary proceedings and satisfactory or effective ratings for all but one year prior to the 2015-2016 year," and that "he was a caring, dedicated, and respectful teacher." Id. The court granted Plaintiff Article 75 relief to the extent that the finding of just cause for termination was vacated and the matter was remanded to DOE for a determination of a lesser penalty. Id. at *8.
Plaintiff alleges that the case is "presently stalled as DOE has filed a motion to reargue and a notice of appeal" in state court. (ECF 2, p.12.)
On May 25, 2018, Plaintiff filed a discrimination charge with the New York State Division of Human Rights. On April 2, 2019, the United States Equal Employment Opportunity Commission issued a notice of right to sue, which Plaintiff received six days later.
On July 5, 2019, Plaintiff submitted his complaint to the "drop box" of the United States Court of Appeals for the Second Circuit in the Thurgood Marshal United States Courthouse. Three days later, this Court received Plaintiff's complaint.
Plaintiff seeks damages, reinstatement, and other relief, including vacatur of the hearing officer's decision.
DISCUSSION
A. The Section 3020-a proceedings
Section 3020-a of the New York Education Law sets out extensive hearing and appeal procedures for disciplining tenured New York State public school teachers. As the procedural history discussed above makes clear, Plaintiff has spent a substantial amount of time availing himself of these and other procedures to challenge the disciplinary measures DOE has sought to impose on him.
1. The Court must give preclusive effect to the hearing officer's determinations that were upheld by the New York Supreme Court
The New York Supreme Court upheld several of the disciplinary measures that the hearing officer found to be appropriate and that Plaintiff seeks to challenge here. This Court must honor the findings of the hearing officer and of the state court on these matters. The Second Circuit has held that hearings conducted under Section 3020-a are quasi-judicial proceedings and that Section 3020-a hearing officers' decisions are entitled to preclusive effect in federal courts if the litigant has had an adequate opportunity to litigate the issue in the state proceedings. Burkybile v. Bd. of Educ. of the Hastings-on-Hudson Union Free Sch. Dist., 411 F.3d 306, 312 (2d Cir. 2005); see also Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 49 (2d Cir. 2014) (holding that a jury was precluded from finding that the plaintiff was not actually engaged in the conduct determined by a hearing officer in a proceeding under Section 75 of the New York State Civil Service Law, but that the jury could consider the question of motive that had not been explicitly decided in that proceeding). Moreover, if the decision under Section 3020-a has been reviewed by a state court, as is the case here, it is binding on a federal court even if the plaintiff is asserting civil rights claims. Ferraro v. N.Y.C. Dep't of Educ., 752 F. App'x 70, 73 (2d Cir. 2018) ("as to certain civil rights claims, . . . there is an additional prerequisite: We give preclusive effect only to a state agency's findings that have been judicially reviewed") (summary order); see, e.g., Smith v. N.Y.C. Dep't of Educ., 808 F. Supp. 2d 569, 580-81 (S.D.N.Y. 2011) (holding that the hearing officer's findings that the plaintiff was guilty of misconduct, which was reviewed by the state courts, precluded the plaintiff from making out a prima facie case of employment discrimination under the ADEA).
2. The Court cannot intervene in ongoing state proceedings
The New York Supreme Court vacated the hearing officer's finding that there was just cause for Plaintiff's termination and remanded that matter to DOE for a determination of a lesser penalty. Plaintiff notes that the state proceedings as to that matter are ongoing.
In Younger v. Harris, 401 U.S. 37 (1971), the United States Supreme Court held that "a federal court may not enjoin a pending state criminal proceeding in the absence of special circumstances suggesting bad faith, harassment or irreparable injury that is both serious and immediate." Gibson v. Berryhill, 411 U.S. 564, 573-74 (1973). Younger abstention is appropriate in only three categories of state-court proceedings: (1) state criminal prosecutions; (2) civil enforcement proceedings that are "akin to criminal prosecutions"; and (3) civil proceedings "that implicate a State's interest in enforcing the orders and judgments of its courts." Sprint Commc'n, Inc. v. Jacobs, 571 U.S. 69, 72-73 (2013).
Federal courts in New York have found proceedings under Section 3020-a to be the type of proceeding contemplated by Younger. Stagliano v. Herkimer Cen. Sch. Dist., 151 F. Supp. 3d 264, 270 (N.D.N.Y. 2015) (collecting cases); Ingber v. N.Y.C. Dep't of Educ., No. 14-CV-3942, 2014 WL 2575780, at *4 (S.D.N.Y. June 9, 2014) (Younger abstention applies to New York public school disciplinary proceedings). This Court may therefore not intervene in the ongoing proceedings under Section 3020-a unless circumstances suggest bad faith, harassment, or irreparable injury. Plaintiff has not alleged any facts that would warrant application of this exception.
The Court therefore dismisses Plaintiff's claims in which he asks the Court to intervene in Plaintiff's state proceedings by overturning the decision of the hearing officer (and, in effect, the decision of the state court).
B. ADEA claims
At the pleading stage in an employment discrimination action, "a plaintiff must plausibly allege that (1) the [defendants] took adverse employment action against him, and (2) his [protected characteristic] was a motivating factor in the employment decision." Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015). For an ADEA claim, however, a plaintiff "bears the added burden of plausibly alleging that the relevant protected trait - his age - was the but-for cause of the employer's adverse action." Mazzeo v. Mnuchin, No. 17-2686, 2018 WL 4492847, at *1 (2d Cir. Sept. 19, 2018) (summary order) (quoting Vega, 801 F.3d at 86) (internal quotation marks omitted). A plaintiff states this type of claim "by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination." Vega, 801 F.3d at 87.
For an ADEA employment retaliation claim, a plaintiff must allege facts that show that "(1) [the] defendants discriminated - or took an adverse employment action - against him, (2) 'because' he has opposed any unlawful employment practice." Id. at 90; see also Riddle v. Citigroup, 640 F. App'x 77, 79 (2d Cir. 2016) (summary order) (applying standard to ADEA retaliation claim) (quoting Vega, 801 F.3d at 90), cert. denied, 137 S. Ct. 1820 (2017). To satisfy the second pleading requirement for this type of claim, a plaintiff must allege facts showing that "the adverse action would not have occurred in the absence of the retaliatory motive," Vega, 801 F.3d at 91 (internal quotation marks and citation omitted); Riddle, 640 F. App'x at 79 (quoting Vega, 801 F.3d at 91), which "may be shown by direct evidence of retaliatory animus or inferred through temporal proximity to the protected activity." Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018).
Plaintiff's allegations are insufficient to state a plausible claim of discrimination or retaliation under the ADEA. Plaintiff fails to allege facts that suggest that but for his age, DOE would not have taken adverse employment action against him. He also fails to allege sufficient facts to suggest that but for his participation in protected conduct to oppose an employment practice that the ADEA prohibits, DOE would not have taken adverse employment action against him. In light of Plaintiff's pro se status, the Court grants Plaintiff leave to amend his complaint to allege sufficient facts to state plausible ADEA claims of discrimination or retaliation.
Plaintiff may be asserting that DOE retaliated against him for complaining about BGHS's special education practices. In doing so, he may be asserting a retaliation claim under the Americans with Disabilities Act of 1990 ("ADA") or the Rehabilitation Act of 1973. To state such a claim under either statute, a plaintiff must allege facts that plausibly suggest that: "(i) [the] plaintiff was engaged in protected activity; (ii) the alleged retaliator knew that [the] plaintiff was involved in protected activity; (iii) an adverse decision or course of action was taken against [the] plaintiff; and (iv) a causal connection exists between the protected activity and the adverse action." Natofsky v. City of New York, 921 F.3d 337, 353 (2d Cir. 2019); Volpe v. N.Y.C. Dep't of Educ., 195 F. Supp. 3d 582, 595-98 (S.D.N.Y. 2016). "A causal connection in retaliation claims can be shown either '(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.'" Natofsky, 921 F.3d at 353 (citation omitted). Plaintiff's allegations are insufficient to state a plausible claim of retaliation under the ADA or the Rehabilitation Act. They lack sufficient detail to suggest that DOE retaliated against him because of his participation in protected conduct to oppose violations of those statutes. The Court therefore grants Plaintiff leave to amend to allege such facts.
C. Leave to amend
Plaintiff is granted leave to amend his complaint to detail his claims. In the statement of claim, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant named in the amended complaint. Plaintiff is also directed to provide the addresses for any named defendants. To the greatest extent possible, Plaintiff's amended complaint must:
a) give the names and titles of all relevant persons;
b) describe all relevant events, stating the facts that support Plaintiff's case, including what each defendant did or failed to do;
c) give the dates and times of each relevant event or, if not known, the approximate date and time of each relevant event;
d) give the location where each relevant event occurred;
e) describe how each defendant's acts or omissions violated Plaintiff's rights and describe the injuries Plaintiff suffered; and
f) state what relief Plaintiff seeks from the Court, such as money damages, injunctive relief, or declaratory relief.
Essentially, the body of Plaintiff's amended complaint must tell the Court: who violated his federally protected rights; what facts show that his federally protected rights were violated; when such violation occurred; where such violation occurred; and why Plaintiff is entitled to relief. Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wishes to maintain must be included in the amended complaint. Plaintiff must not reassert in his amended complaint claims that the Court has dismissed in this order.
CONCLUSION
The Clerk of Court is directed to assign this matter to my docket, mail a copy of this order to Plaintiff, and note service on the docket. Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as an "Amended Complaint," and label the document with docket number 19-CV-6327 (CM). An Amended Complaint for Employment Discrimination form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the action will be dismissed for failure to state a claim upon which relief may be granted. See28 U.S.C. § 1915(e)(2)(B)(ii).
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
The Clerk of Court is also directed to correct the filing date of this action on the docket so that the docket shows that Plaintiff filed his complaint on July 5, 2019.
The Clerk of Court is further directed to docket this order as a "written opinion" within the meaning of Section 205(a)(5) of the E-Government Act of 2002. SO ORDERED. Dated: November 6, 2019
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge