Opinion
No. 04 Civ. 2687 (HB).
August 4, 2004
OPINION ORDER
Defendants Elmsford School District (the "District"), the Elmsford Board of Education (the "Board"), Principal Wayne Harders ("Harders"), and Superintendent of Schools Dr. Carol Franks-Randall ("Franks-Randalls") (collectively "defendants") move pursuant to Federal Rules of Civil Procedure (" Fed.R.Civ.P") 12(b)(1) and 12(b)(6) to dismiss Counts I, II and III of plaintiff Rose Francis' ("Francis") complaint, for lack of subject matter jurisdiction, failure to file a notice of claim, lack of personal liability under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., qualified immunity, and the unavailability of punitive damages. For the following reasons, defendant's motion is granted-in-part and denied-in-part.
While defendants claim that plaintiff's Title VII claim should be dismissed against the two individual defendants, Harders and Franks-Randall, plaintiff did not bring a Title VII claim against these two defendants. Therefore, defendant's motion to dismiss the Title VII claims against Harders and Franks-Randall is denied as moot. However, if plaintiff believes that she could viably assert Title VII claims against Harders and Franks-Randall, and chooses to do so, she has 20 days, from the date of this Opinion Order, to replead. See, e.g., Grullon v. Reid, 97 Civ. 7616, 1999 WL 436457, at *11 (S.D.N.Y. June 24, 1999) ("Leave to amend a complaint should be freely granted when justice so requires, but is [sic] proper to deny leave to replead where there is no merit in the proposed amendments or amendment would be futile.").
I. BACKGROUND
A. Factual Background
In 1986, Francis began working as a teacher at the Alice Grady School ("AGS") in the Elmsford School District ("District"), where she is still a teacher today. Complaint ("Compl.") ¶ 8. Francis is an African American woman who was 67 years of age at the time that her claim arose. Throughout the course of her employment, Francis taught Grades 1, 2, 4, and 5. In 1998, after teaching second grade at AGS for three years, Francis was reassigned, for one year, to teach second grade at another school in the District. Id. Then, Francis was sent back to AGS to teach fifth grade for the 2000-2001 school year. AGS then assigned Francis to a second grade class for the following school year. Id. Francis alleges that these multiple transfers caused her great stress and emotional harm. Id.
Francis remained a second grade teacher at AGS for the 2002-2003 school year, and on July 24, 2002, when she arrived at school to prepare her classroom for the upcoming year, she received a note from Harders, asking her to come speak with him. During her meeting with Harders, Francis learned that she was to be reassigned and would teach Academic Intervention Services ("AIS"), a remedial program created for students who scored poorly on the required state standardized tests, a program with which she had no prior experience and about which she never expressed interest. Compl. ¶ 8. A much younger, Caucasian teacher replaced Francis temporarily. New York State Department of Human Rights ("SDHR") Complaint ("SDHR Compl.") ¶ 4. According to Francis, Harders asserted that Francis' incompetence as a teacher was partly the reason behind her latest transfer. Compl. ¶ 9. Francis contends that she had never before received any substantive complaints about her teaching. In response, defendants allege that throughout the years, Francis made many insensitive comments to her students, such as telling a student, "you're never going to make it." In a letter dated March 24, 2003, defendants also assert that Francis had received multiple complaints from concerned parents over the years, as well as evaluations from school officials suggesting areas in which she could improve her teaching, advice she allegedly did not take. Defendants also claim that Francis was reassigned because Harders and Franks-Randall believed that Francis was better suited to teach a smaller group of students — a view that Franks-Randall conveyed to Francis in an August 2002 meeting regarding the transfer. Id. at 4; Compl. ¶ 9.
Defendants contend that Francis' replacement, Lauren Domanico, was only hired to teach at AGS for one year.
In the March 2003 letter, the defendants allege that, due to a lack of classroom space and availability, Francis was made to teach AIS in the wing of a hallway. However, Francis asserts that all of the other teachers still taught in classrooms. Francis contends that she was given a child's chair, and did not receive work materials or a job description. Compl. ¶ 9. Francis argues that she was transferred to the hallway and treated poorly because of her race and age. Defendants maintain that the less than optimal conditions of the hallway classroom were solely due to overcrowding. In March 2003, Francis raised her discontent with her transfer at a School Board meeting. Compl. ¶ 10. While Francis did not receive a formal response, she soon received a large adult-sized chair, materials for the upcoming 2002-2003 school year, and a budget of $100 for classroom materials. Id.
B. Procedural History
On or about February 6, 2003, Francis filed a complaint against the District in the SDHR, alleging a pattern of continuing age discrimination. On December 20, 2003, the SDHR dismissed her complaint, finding there was no support for the allegations of age discrimination. Subsequently, on April 8, 2004, Francis filed the instant complaint, adding defendants, and expanding her allegations to include race and national origin discrimination.
II. DISCUSSION
A. Standard of Review
When determining whether to dismiss a case for failure to state a claim upon which relief may be granted, the Court accepts the material facts alleged in the complaint as true, and draws any and all reasonable inferences in the plaintiff's favor. Benjamin v. N.Y.C. Dep't of Health, 99 Civ. 12345, 2002 WL 485731, at *5 (S.D.N.Y. Mar. 29, 2002) (citing Grandon v. Merrill Lynch, 147 F.3d 184, 188 (2d Cir. 1998)). Likewise, the Court only dismisses an action when it appears without doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1975) (citations omitted); Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 2000).
B. Section 296 of the New York Human Rights Law
Francis claims that she is entitled to relief pursuant to § 296 of the New York Human Rights Law, which prohibits the discrimination of an employee by an employer, on the basis of age, race, color, or national origin. Without reaching the merits, the defendants argue that Francis' § 296 claim must be dismissed for lack of subject matter jurisdiction, pursuant to New York Human Rights Law § 297(9). Section 297(9) provides, in pertinent part, that:
Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction . . . unless such person had filed a complaint hereunder or with any local commission on human rights, or with the superintendent pursuant to the provisions of section two hundred-six-a- of this chapter, . . . provided that, where the division has dismissed such complaint on the grounds of administrative convenience . . . or on the grounds that the election of remedies is annulled, such person shall maintain all rights to bring suit as if no complaint had been filed with the division.
N.Y. Exec. Law § 297(9) (emphasis added). Therefore, § 297(9) bars a party from bringing a § 296 claim in federal court, if he or she first filed a complaint, based on the same set of facts, with the SDHR or any local commission on human rights. Moodie v. Fed. Reserve Bank, 58 F.3d 879, 882 (2d Cir. 1995).
Francis concedes that she filed a human rights claim with the SDHR, but argues that this federal claim is distinct because (1) she now alleges discrimination based on age, race and national origin, whereas her SDHR complaint only alleged age discrimination, and (2) her federal complaint charges new defendants with misconduct. Her allegations require a determination as to whether the new claim arises from the same set of facts. The test is whether a "sufficient identity of issue" exists between the two complaints, James v. City of N.Y., 01 Civ. 30, 2003 WL 21991591, at *5 (S.D.N.Y. Aug. 20, 2003) (quoting Spoon v. American Agriculturalist, Inc., 478 N.Y.S.2d 174, 175 (1984)), and dictates that when it does, the federal complaint cannot survive. To overcome the bar, the plaintiff must allege a different form of discrimination, and offer different facts in support thereof. Benjamin, 2002 WL 485731, at *3. But, simply changing a legal theory or adding additional evidence of damage does not suffice. See Carroll v. U.P.S, 225 F.3d 645, 657 (2d Cir. 2000) (quoting Bhagalia v. State, 644 N.Y.S.2d 398, 399 (1996)); Benjamin, 2002 WL 485731, at *2. Francis' contends that her § 297(9) claim does not bar her § 296 claim, but my analysis suggests otherwise. In her SDHR complaint, alleging age discrimination, Francis stated that she was sent into the hallway to work for "allegedly being an ineffective teacher," she was not given materials other teachers received, and she was replaced by a much younger teacher. In her federal complaint, Francis mirrors these same facts, merely adding that each discriminatory act occurred not only as a consequence of her age, but also as a result of her race. For example, in her SDHR claim, Francis notes that she was replaced by a younger teacher, while in her federal claim she states that she was replaced by a younger, Caucasian teacher. SDHR. Compl. ¶ 4; Compl. ¶ 10. Clearly, the facts underlying Francis' claims as set out in the two complaints are the same.
Moreover, the federal complaint discusses the claims of age, race, and national origin discrimination together, thereby highlighting that the additional claims are not "new" in the manner required by § 297(9). For example, the instant complaint asserts that "life [was] made difficult — all based on her race and age . . . all of the said transfers, and her final assignment to [a program for students who scored below state standardized test requirements], was based on Rose Francis' race and age, and for no other reason." Compl. ¶ 10 (emphasis added). At no point does Francis assert any new facts based solely on race and national origin discrimination.
The fact that Francis has joined additional defendants in her federal suit does not sufficiently overcome the jurisdictional bar. I cannot consider a party's cause of action against additional defendants when § 297(9) has already divested the Court of subject matter jurisdiction. Lyman v. City of N.Y., 96 Civ. 2382, 1997 WL 473976, at *4 (S.D.N.Y. Aug. 20, 1997); Brown v. Wright, 641 N.Y.S.2d 125 (1996); Craig-Oriol v. Mount Sinai Hosp., 607 N.Y.S.2d 391 (1994); Hirsch v. Morgan Stanley Co., 657 N.Y.S.2d 448, 468 (1997). As Francis' federal age and race discrimination claims are barred because they arise from the same facts as alleged in the SDHR complaint, these claims may not be raised here against additional defendants.
C. Intentional Infliction of Emotional Distress
1. Municipal Liability
Defendants assert that Francis' state law claims for intentional infliction of emotional distress against the District and School Board must be dismissed based on her failure to file a notice of claim within 90 days of the date when her claims accrued. It is well established that an action in tort against a municipality requires service of a notice of claim on the municipality, within 90 days of the date when the claim arose. N.Y. Educ. Law § 3813; Dauber v. Bd. of Educ. of N.Y., 99 Civ. 3931, 2001 WL 1246581, at *9 (S.D.N.Y. Oct. 18, 2001). A claim arises when the central discriminatory conduct occurs.Kushner v. Valenti, 285 F. Supp.2d 314, 315-16 (E.D.N.Y. Sept. 29, 2003). Although it is undisputed that Francis' claim arose in or around September 2002, Francis failed to file a notice of claim until April 2004 — well beyond the 90 days required by statute. According to the complaint, the alleged harassment was most extreme during Francis' relocation to the hallway, which occurred in the late summer of 2002, and during the allegedly unproductive meetings with school officials in March 2003. The only events that occurred within 90 days of Francis' filing of her notice of claim was her receipt of a chalkboard and a larger table — both of which are positive acts, and therefore, most certainly not indicative of when Francis' claim arose. Compl. ¶ 10; See Dauber, 2001 WL 1246581, at *9 (holding that plaintiff's state law claims were still barred even though one event — the alleged destruction of some classroom materials — took place within the 90 days prior to the filing of the complaint). Therefore, Francis' state law claims for intentional infliction of emotion distress against the municipal defendants are dismissed.
Francis fails to address this argument in her response to defendant's motion to dismiss; rather, she merely states that the Court should allow the state claims to proceed on the basis of supplemental jurisdiction, 28 U.S.C. § 1367. While this Court's powers of supplemental jurisdiction are not controversial, plaintiff has not — and cannot — establish that a Court's supplemental jurisdiction power supplants § 3813's notice of claim requirement.
2. Individual Liability
The defendants also move for dismissal of the state law intentional infliction of emotional distress claims against Harders and Franks-Randall on the basis that both of these defendants were acting within the scope of their employment when the alleged discrimination occurred. Individuals cannot be held liable for intentional infliction of emotional distress, while acting within the scope of their employment. Benjamin, 2002 WL 485731, at *8. New York General Municipal Law § 50-k(3) provides that [New York City] shall indemnify and save harmless its employees . . . provided that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of public employment. N.Y. Gen. Mun. Law 50-k(3) (Consol. 2000). However, a claim survives a motion to dismiss when the pleadings do not exclude the possibility that the defendants were acting outside the scope of their employment when the alleged acts were committed. Benjamin, 2002 WL 485731, at *8. Unlike in Benjamin, Francis does not even allege that Harders and Franks-Randall were acting outside the scope of their authority. Therefore, whereas the complaint cannot be read to make such a claim, the claim is dismissed against Harders and Franks-Randall. Plaintiff is granted leave to replead, within 20 days of this Opinion Order, if she possesses sufficient facts to establish such claims. See Grullon, 1999 WL 436457, at *11.
In Benjamin, the plaintiffs argued that the defendants acted outside of the scope of their employment in committing the acts of discrimination; accordingly, the Court held that the plaintiff's allegations did not exclude this possibility, and further decided that a jury should determine whether the defendants were acting outside of the scope of their employment. 2002 WL 485731, at *8.
D. Punitive Damages
Francis seeks punitive damages in the amount of $4,000,000 against each defendant. As a matter of law, punitive damages may not be imposed on a municipality. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 268 (1981); see also DiSorbo v. Hoy, 343 F.3d 172, 182 (2d Cir. 2003). Therefore, punitive damages may not be recovered against either the District or the School Board. Since all claims against the individual defendants, Harders and Franks-Randall, have been dismissed, plaintiff's claim for punitive damages against these individuals is moot.
III. CONCLUSION
For the foregoing reasons, defendant's motion to dismiss the complaint is granted-in-part and denied-in-part, and (1) plaintiff's N.Y. Exec. Law § 296 claim is dismissed against all defendants, (2) plaintiff's state law tort claims are dismissed against all defendants, (3) plaintiff's Title VII claim is dismissed against defendants Harders and Franks-Randall, and (4) plaintiff's demand for punitive damages from the District is the School Board are denied. Therefore, the only claims to survive are plaintiff's Title VII claim against the School Board and the District, about which defendant did not move to dismiss. The plaintiff has 20 days from the date of this Opinion Order, if she so chooses, to amend her complaint (1) to plead Title VII claims against Harders and Franks-Randall, and (2) to re-plead her state law intentional infliction of emotional distress claims against these same defendants. The Clerk of the Court is instructed to close this motion.