Opinion
21-CV-01711 (AT)(SN)
08-15-2022
MINERVA GOMEZ, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION and MARCIA SULIT-TORRES, Defendants.
REPORT AND RECOMMENDATION
SARAH NETBURN, United States Magistrate Judge.
TO THE HONORABLE ANALISA TORRES:
Minerva Gomez (“Plaintiff”) brings this employment discrimination action against the New York City Department of Education (“DOE”) and Marcia Sulit-Torres (“Sulit-Torres), Principal of P.S. 155. Plaintiff, proceeding pro se, asserts claims pursuant to the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621 et seq., the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law §§ 290 et seq., and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code §§ 8-101 et seq. Defendants move to dismiss the complaint pursuant to Rule 12(b)(6) for failure to state a claim. I recommend that the Court grant Defendants' motion to dismiss.
BACKGROUND
Plaintiff has been employed as a teacher by the DOE since 1996. ECF No. 24, Amended Complaint (“AC”), Addendum (“AC Addendum”) ¶ 1. In October 2016, she was hired as an Assistant Principal at P.S. 155 in Manhattan. Id. at ¶ 2. At that time, Fleurant Joseph was principal of the school. Id. During Principal Joseph's tenure, Plaintiff received Satisfactory annual ratings. Id. at ¶ 3.
In September 2018, Sulit-Torres became principal of P.S. 155 following Principal Joseph's departure. Id. at ¶ 4. Sulit-Torres is approximately 43 years old. Id. at ¶ 5. Plaintiff alleges that Sulit-Torres favors younger teachers over older staff with more experience. She appointed a teacher with only four years of experience to serve as grade team leader over Plaintiff. Id.
Plaintiff further alleges that Sulit-Torres made several comments about her age and derogatory remarks about older teachers in 2018 and 2019. In October 2018, Sulit-Torres told Plaintiff that she was not a “good fit” for the school and asked when she planned to retire. Id. at ¶ 6. In April 2019, Sulit-Torres said that older tenured teachers were as “old as dinosaurs” and needed “to retire already.” Id. at ¶ 7. She complained that older teachers at the school were not computer literate or tech savvy. Id. In December 2019, Sulit-Torres told Plaintiff and the school literacy coach that she was tired of an older teacher and stated: “I want that old bitch to retire.” Id. at ¶ 8. The same month, Sulit-Torres asked Plaintiff: “How old are you again? When are you eligible for retirement?” Id. at ¶ 9. Despite these remarks, Sulit-Torres gave Plaintiff a Satisfactory overall rating for the 2018-2019 school year. Id. at ¶ 10.
Because of what she viewed as ongoing age-based harassment, Plaintiff filed a special harassment complaint against Sulit-Torres through her union, the Council of School Supervisors and Administrators (CSA). Id. at ¶ 11. She filed the complaint on February 4, 2020, and a meeting with the union representative and a DOE administrator was scheduled for February 14, 2020, to discuss her accusations. Id. at ¶¶ 11-12. That afternoon, Plaintiff received a letter informing her that her position as Assistant Principal would be discontinued on March 16, 2020. Id. at ¶ 13. After her position was discontinued, Plaintiff was demoted to classroom teacher, resulting in a significant reduction in her pay. Id. at ¶ 14. Ayo Mendez-Torres, who is 44 years old and “significantly younger” than Plaintiff, replaced her as Assistant Principal. Id. at ¶ 15. Plaintiff currently works as a 4K teacher at P.S. 155. Id. at ¶ 16.
In her Amended Complaint, Plaintiff states that she seeks monetary damages for lost salary, benefits, and attorney's fees and her reinstatement as assistant principal. AC at 6.
Two documents are attached to Plaintiff's Complaint. The first is a right to sue letter from the Equal Employment Opportunity Commission (EEOC), dated January 15, 2021. AC at 11 (“EEOC Dismissal and Notice of Rights”). The letter states that the EEOC was closing its file on Plaintiff's charge because the “charging party wishes to pursue matter in Federal District Court.” Id. The second document is Plaintiff's New York State Division of Human Rights Employment Complaint, dated April 21, 2020. AC at 13 (“NYSDHR Compl.”). In the NYSDHR Complaint, Plaintiff alleges that she was discriminated against on the basis of her age and claims that she was retaliated against following the filing of her special harassment complaint, given a disciplinary notice or negative performance review, and demoted. Id. at 14. Plaintiff does not detail the exact comments made by Sulit-Torres, but rather generally alleges that “[d]uring the 2018-2019 school year, Principal Sulit would ask me when I was going to retire.” Id. at 19. “For example,” she continues, “Principal Sulit stated I wasn't a good fit for the school and I should be thinking of finding another job or school; then she asked how many more years before I retire.” Id. In her NYSDHR complaint, Plaintiff seeks the withdrawal of her notice of discontinuance, reinstatement as Assistant Principal with lost wages, and emotional distress damages. Id. at 17.
Before bringing this case, Plaintiff, through counsel, filed an Article 78 special proceeding in state court seeking to reverse and annul the DOE's decision to discontinue her employment as an assistant principal. See ECF No. 27, Declaration of Corey B. Hirsh, Ex. 1 (“Verified Petition”) ¶ 1. The Petition alleged that Principal Sulit-Torres harassed Plaintiff to get her to leave the school. Based on “this ongoing harassment,” Plaintiff filed a special harassment complaint with the CSA. Id. at ¶ 17. On the day she was scheduled to meet with a DOE administrator and her union representative to discuss her complaint, Plaintiff received the notice of discontinuance. Id. at ¶¶ 18-19. Plaintiff's Petition claimed that Sulit-Torres's “discriminatory and retaliatory behavior . . . created a hostile work environment,” and that the DOE's “determination to discontinue [her] probationary employment as an Assistant Principal [was] discriminatory, retaliatory and bad faith, and in violation of lawful procedure.” Id. at ¶¶ 22, 26. Plaintiff did not specifically allege age discrimination in the Petition.
On March 11, 2021, the Hon. Eileen Rakower of New York County Supreme Court denied the Article 78 petition on the grounds that the demotion was supported by documentary evidence rather than the result of Plaintiff's filing of the harassment claim. See ECF No. 27, Declaration of Corey B. Hirsh, Ex. 2 (“Notice of Entry, Decision and Order”). The Appellate Division, First Department, unanimously affirmed the decision. Gomez v. City of New York, 204 A.D.3d 516 (1st Dep't 2022). The Appellate Division concluded that Plaintiff had “failed to demonstrate that her probationary employment as assistant principal was terminated in bad faith, in violation of law, or for an impermissible reason,” noting that the record showed that she was discontinued “because of her failure to comply with directives, complete assignments, and [her] two-year history of poor work performance.” Id. Furthermore, “[a]s the evidence documenting petitioner's unacceptable work performance began in 2018 and continued for an extensive period of time before she filed her harassment complaint, there is no evidence of retaliation.” Id. On August 8, 2022, Plaintiff moved for re-argument or, in the alternative, for leave to appeal to the New York Court of Appeals. See New York State Courts Electronic Filing, No. 2021-03633, Doc. No. 10.
Plaintiff filed this action on February 25, 2021. ECF No. 2. She filed her First Amended Complaint on October 18, 2021, and Defendants moved to dismiss. ECF Nos. 24 & 26.
DISCUSSION
The Court construes Plaintiff's Amended Complaint to raise four claims under the ADEA, NYSHRL, and NYCHRL: (1) a discriminatory discharge claim for the termination of her position as assistant principal; (2) a retaliation claim; (3) a hostile work environment claim; and (4) a disparate treatment claim.
I. Legal Standard
A complaint must be dismissed if it fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To state a legally sufficient claim, a complaint must plead “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). In evaluating a complaint under this standard, a court must accept as true the well-pleaded factual allegations set forth in the complaint and draw all reasonable inferences in favor of the plaintiff. Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). While the plausibility standard “does not require detailed factual allegations,” it “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Cantor Fitzgerald Inc. v. Lutnick, 313 F.3d 704, 709 (2d Cir. 2002) (stating that a court need not give “credence to [a] plaintiff's conclusory allegations”). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). “A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient to survive a motion to dismiss under Rule 12(b)(6). Id. (internal quotation marks omitted). A motion to dismiss on grounds of preclusion is treated as a motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), not as a motion to dismiss for lack of jurisdiction under Rule 12(b)(1). See Thompson v. Cty. of Franklin, 15 F.3d 245, 253 (2d Cir. 1994).
Where a plaintiff proceeds pro se, her complaint “must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quotation marks omitted) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). When addressing a motion to dismiss, “courts must construe [a pro se complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggest[s].” Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 145-46 (2d Cir. 2002).
A complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. See, e.g., Hart v. FCI Lender Servs., Inc., 797 F.3d 219, 221 (2d Cir. 2015) (citing Fed.R.Civ.P. 10(c) (“A statement in a pleading may be adopted by reference elsewhere in the same pleading or in any other pleading or motion. A copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes.”)). “[I]n ruling on a 12(b) motion to dismiss,” courts are also “permitted to consider matters of which judicial notice may be taken.” Simmons v. Trans Express Inc., 16 F.4th 357, 360 (2d Cir. 2021) (internal quotation omitted). Court records are subject to judicial notice, and so may be properly considered on a motion to dismiss. See Akhenaten v. Najee, LLC, 544 F.Supp.2d 320, 327 n.9 (S.D.N.Y. 2008).
A complaint does not include allegations raised for the first time in opposition to a motion to dismiss, and such allegations do not automatically amend the complaint. See O'Brien v. Nat'l Prop. Analysts Partners, 719 F.Supp. 222, 229 (S.D.N.Y. 1989) (“[I]t is axiomatic that the Complaint cannot be amended by the briefs in opposition to a motion to dismiss.”); Capers v. Kirby Forensic Psychiatric Ctr., No. 13-cv-6953 (AJN), 2016 WL 817452, at *2 (S.D.N.Y. Feb. 25, 2016) (applying rule against amending complaint by the briefs to pro se plaintiff). A court may, however, consider new allegations in an opposition brief “in determining whether to grant [the plaintiff] leave to file a[n] . . . Amended Complaint.” Capers, 2016 WL 817452, at *2; see also Jordan v. Chase Manhattan Bank, 91 F.Supp.3d 491, 500 (S.D.N.Y. 2015).
II. Res Judicata
“Under res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties on the same cause of action.” Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 347 (1999). “[O]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy.” Id. at 347-48. Federal courts apply New York law to determine the preclusive effect of a New York state court judgment. Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002). “In determining what constitutes the same transaction, the court should look to: how the facts are related in time, space, origin or motivation; whether they form a convenient trial unit; and whether treating them as a unit conforms to the parties' expectations.” Yeiser v. GMAC Mortg. Corp., 535 F.Supp.2d 413, 422 (S.D.N.Y. 2008) (citing Marinelli Assocs. v. Helmsley-Noyes Co., 265 A.D.2d 1, 5-6 (1st Dep't 2000)). “Under New York law, . . . the mere pendency of an appeal does not deprive a challenged judgment of its res judicata effects.” Antonious v. Muhammad, 873 F.Supp. 817, 824 (S.D.N.Y. 1995).
Plaintiff's Article 78 Petition sought reinstatement as an assistant principal on the ground that the discontinuance notice was issued in retaliation for filing the special harassment complaint. The state court concluded that there was insufficient evidence of retaliation and a record of poor performance and held that the discontinuance was not arbitrary or capricious. Similarly, Plaintiff's federal complaint alleges, in part, that her discontinuance was “in retaliation for the filing of my special harassment complaint....” AC ¶ 15. Thus, the Appellate Division's decision is a valid final judgment that concerns the same transaction as Plaintiff's federal claims.
Plaintiff argues that her Article 78 petition challenged the discontinuance notice as an act of retaliation for exercising her union rights and not for direct age discrimination, as she alleges here. Claim preclusion, however, “‘bars an action if the plaintiff could have raised the claim in a prior proceeding,' even if he did not.” Abdelal v. Kelly, 726 Fed.Appx. 8, 10 (2d Cir. 2018) (summary order) (quoting Colon v. Coughlin, 58 F.3d 865, 870 n.3 (2d Cir. 1995)). Although it is, at least, unclear whether Plaintiff argued that the discontinuance notice was the product of age discrimination, she plainly could have raised that claim in her Article 78 proceeding.
New York's claim preclusion rule generally does not apply, however, if “an Article 78 proceeding does not have the power to award the full measure of relief available in subsequent” civil rights action. Vargas v. City of New York, 377 F.3d 200, 205 (2d Cir. 2004). Plaintiff's amended complaint seeks only back wages and benefits as compensatory damages. This relief was also available in the Article 78 proceeding. While the ADEA does permit recovery of liquidated damages in the case of willful violations (which Plaintiff has not alleged), it does not provide for either punitive or emotional distress damages. See Belizaire v. RAV Investigative & Sec. Servs., Ltd., 61 F.Supp.3d 336, 362 (S.D.N.Y. 2014). In contrast, NYSHRL and NYCHRL allow for emotional distress damages. Indeed, Plaintiff sought emotional distress damages in her NYSDHR complaint. AC at 17. Construing Plaintiff's pro se complaint broadly to assert the strongest claims available, as I must, she could seek emotional distress damages on her NYSHRL and NYCHRL claims. Accordingly, while her ADEA discriminatory discharge and retaliation claims are precluded because she is not entitled to any additional remedies under the statute, the doctrine of claim preclusion does not apply to her NYSHRL and NYCHRL claims because there is “incomplete overlap between the relief available to [Plaintiff] in [her] Article 78 proceedings and in this case.” Latino Officers Ass'n v. City of New York, 253 F.Supp.2d 771, 782-83 (S.D.N.Y. 2003). See Antonsen v. Ward, 943 F.2d 198, 200 (2d Cir. 1991) (holding that claim for compensatory damages not barred where plaintiff could not seek non-economic damages in Article 78 proceeding); see also Washington v. N.Y.C. Dep't of Educ., No. 16-cv-6588 (ER), 2017 WL 4687982, at *10 (S.D.N.Y. Oct. 16, 2017) (former teacher's discrimination claims not barred by previous Article 78 proceeding because monetary relief was not available); Nash v. Bd. of Educ. of the City of New York, No. 99-cv-9611 (NRB), 2016 WL 5867449, at *5 (S.D.N.Y. Sept. 22, 2016) (same). But because reinstatement or other injunctive or declaratory relief was available as a remedy in the Article 78 proceeding, Plaintiff's claim for that relief is barred. Fay v. S. Colonie Cent. Sch. Dist., 802 F.2d 21, 30 (2d Cir. 1986), overruled on other grounds by Taylor v. Vt. Dep't of Educ., 313 F.3d 768 (2d Cir. 2002); Leo v. N.Y.C. Dep't of Educ., No. 13-cv-2271 (RJD)(JMA), 2014 WL 6460704, at *4 (E.D.N.Y. Nov. 17, 2014).
In summary, I recommend that the Court dismiss Plaintiff's ADEA discriminatory discharge and retaliation claims on the ground of claim preclusion but hold that she is not otherwise barred from seeking emotional distress damages under the NYSHRL and NYCHRL.
III. Collateral Estoppel
Collateral estoppel, or issue preclusion, “precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party . . . whether or not the tribunals or causes of action are the same.” LaFleur v. Whitman, 300 F.3d 256, 271 (2d Cir. 2002) (quoting Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500 (1984)). “The doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action.” Parker, 93 N.Y.2d at 350. The party seeking to invoke the doctrine has the burden of demonstrating that the issues are identical and were necessarily decided in the prior action, and the party opposing its use has the burden of “establishing the absence of a full and fair opportunity to litigate the issue in the prior action.” In re Sokol, 113 F.3d 303, 306 (2d Cir. 1997). “Collateral estoppel . . . is grounded on concepts of fairness and should not be rigidly or mechanically applied.” D'Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 664 (1990). “The rule in New York is that the ‘pendency of an appeal does not prevent the use of the challenged judgment as the basis of' collateral estoppel.” 77 Water St., Inc. v. JTC Painting & Decorating, 148 A.D.3d 1092, 1095 (2d Dep't 2017) (quoting Anonymous v. Dobbs Ferry Union Free Sch. Dist., 19 A.D.3d 522, 522 (2d Dep't 2005)).
In her Article 78 proceeding, Plaintiff argued that she was terminated in retaliation for filing a harassment complaint with her union, an exercise of her rights as a public employee. See Notice of Entry, Decision and Order. Both the Supreme Court and the Appellate Division explicitly rejected this argument, finding that the DOE's contention that she was fired for poor work performance was well-supported, and her termination was not retaliation for filing the complaint. As such, Plaintiff is barred by collateral estoppel from relitigating these issues in this action. See Zagerson v. N.Y.C. Dep't of Educ., No. 20-cv-11055, 2022 WL 292917, at *12 n.16 (S.D.N.Y. Jan. 31, 2022) (“[I]t appears likely that the state court's determination that Defendants had a legitimate reason to terminate Plaintiff is entitled to preclusive effect, even if Plaintiff intends to appeal that decision.”) (citing LaFleur v. Whitman, 300 F.3d 256, 272 (2d Cir. 2002) (“A judgment pursuant to Article 78 may preclude relitigation of issues already decided in that earlier judgment.”)).
Plaintiff did not, however, raise her age discrimination claims in state court. Federal courts have consistently found that a state court's determination that a termination was not arbitrary or capricious does not “actually and necessarily” decide the question of whether the termination decision was made with discriminatory intent where Plaintiff did not raise the issue in the Article 78 proceeding. Vargas, 377 F.3d at 206; see also Latino Officers Ass'n, 253 F.Supp.2d at 785 (reasoning that the “finding that the decision to terminate was supported by substantial evidence-essentially a finding that it was rational-does not lead inexorably to the conclusion that” discriminatory intent did not motivate the termination decision). While Plaintiff may not relitigate the issue of whether Defendants had a legitimate basis for terminating her, under the McConnell Douglas burden-shifting framework, she “is entitled to an opportunity at a future stage of the proceedings to demonstrate that Defendants' proffered reasons for [her] termination were pretextual.” Zagerson, 2022 WL 292917, at *12 n.16. Because Plaintiff's claims of age discrimination were not litigated in her Article 78 proceeding, they are not barred by collateral estoppel. Compare Nash, 2016 WL 5867449, at *6 (plaintiff's Title VII, NYSHRL, and NYCHRL claims barred where argued in Article 78 proceeding that termination motivated by age and race discrimination) and Batreyva v. N.Y.C. Dep't of Educ., No. 07-cv-4544 (PAC)(DF), 2008 WL 4344583, at *9 (S.D.N.Y. Sept. 18, 2008) (Title VII claims barred where discrimination on basis of national origin litigated in Article 78 proceeding); with Garrido v. N.Y.C. Dep't of Educ., No. 16-cv-9464 (DAB), 2018 WL 1664793, at *5 (S.D.N.Y. Mar. 15, 2018) (“Because Plaintiff did not raise her discrimination claims in the state proceeding, and because there is no other indication that the state court considered and rejected these claims, collateral estoppel does not preclude Plaintiff from making a discrimination challenge in the instant case.”); and Johnson v. N.Y.C. Dep't of Educ., No. 08-cv-5260 (ENV)(LB), 2011 WL 13300034, at *3 (E.D.N.Y. Apr. 22, 2011).
Although Plaintiff makes references to a hostile work environment in her Article 78 petition, neither Supreme Court nor the Appellate Division explicitly ruled on this claim. See Notice of Entry, Decision and Order; Gomez, 204 A.D.3d at 516.
I recommend that the Court hold that Plaintiff is barred from relitigating the issue of whether Defendants had a legitimate reason for her discontinuance as an assistant principal, but is not barred from litigating whether that reason was pretextual or otherwise discriminatory.
IV. ADEA Claims
A. Exhaustion
The ADEA requires that a plaintiff file a charge with either the Equal Employment Opportunity Commission (“EEOC”) or the state or local equivalent - in this case, the New York State Division of Human Rights (NYSDHR) - within 300 days of the alleged discriminatory act. 29 U.S.C. §§ 626(d)(1)(B), 633(b); see also Dickens v. Hudson Sheraton Corp., LLC, 167 F.Supp.3d 499, 514 (S.D.N.Y. 2016); Wein v. N.Y.C. Dep't of Educ., No. 18-cv-11141 (PAE), 2020 WL 4903997, at *8 (Aug. 19, 2020). “[T]he Supreme Court has consistently held that ‘the EEOC charging period is triggered when a discrete unlawful practice take place.'” Liles v. N.Y.C. Dep't of Educ., 516 F.Supp.2d 297, 309 (S.D.N.Y. 2007) (quoting Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 619 (2007)). Although “[discriminatory acts occurring before the 300-day charging period may be saved from [the] time bar by the ‘continuing violation' doctrine,” Pearson v. Bd. of Educ, 499 F.Supp.2d 575, 590 (S.D.N.Y. 2007), a plaintiff may only invoke the doctrine if she can show “that the related acts were the result of a discriminatory policy rather than isolated instances of discrimination,” id. “It is well-settled that ‘multiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation.'” Id. (quoting Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993). Similarly, in the context of a hostile work environment claim, “the employee need only file a charge within 180 or 300 days of any act that is part of the hostile work environment.” Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 118 (2002). In addition, “[t]he federal courts generally have no jurisdiction to hear claims not alleged in an employee's EEOC charge.” Shah v. N.Y. State Dep't of Civ. Serv., 168 F.3d 610, 614 (2d Cir. 1999).
“If a plaintiff files a timely EEOC charge, he must file suit under Title VII or the ADEA within 90 days of receiving a right-to-sue letter.” Dickens, 167 F.Supp.3d at 514-515. (citing 42 U.S.C. § 2000e-5(f)(1)). Plaintiff received a right-to-sue letter from the EEOC on January 15, 2021, and filed this action on February 25, 2021, well within the 90-day period.
Plaintiff's NYSDHR complaint is dated April 21, 2020. Therefore, any claims predicated on discrete acts occurring before June 26, 2019, and not forming part of a hostile work environment claim, must be dismissed. Pearson, 499 F.Supp.2d at 591. Plaintiff alleges only two incidents that occurred before that Dated: Sulit-Torres's comment in October 2018 that Plaintiff was not a “good fit” for the school, and her comment in April 2019 that older tenured teachers were as “old as dinosaurs” and needed “to retire already.” Although Plaintiff argues that these demeaning comments should be considered under the continuing violation doctrine, she has not provided any evidence that these comments were the result of a discriminatory policy rather than isolated acts of discrimination. Id. at 590. And for the reasons explained below, Plaintiff has failed to state a claim for a hostile work environment under the ADEA.
Furthermore, to the extent that Plaintiff alleges a disparate treatment claim based on Sulit-Torres's selection of a younger teacher with less experience as grade team leader, that claim was not raised in Plaintiff's NYSDHR complaint and so is unexhausted. See Butts v. City of N.Y. Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1402 (2d Cir. 1993), superseded by statute on other grounds as stated in Legnani v. Alitalia Linne Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001).
In conclusion, I recommend that the Court decline to consider any discrete acts of discrimination occurring before June 26, 2019, as time-barred, and dismiss Plaintiff's disparate treatment claim as unexhausted.
B. Age Discrimination
If the Court disagrees with my recommendation that Plaintiff's discriminatory discharge claim is precluded by res judicata, I recommend that it be dismissed for failure to state a claim. To plausibly allege a claim of age discrimination, a plaintiff “must show (1) that [she] was within the protected age group, (2) that [she] was qualified for the position, (3) that [she] experienced adverse employment action, and (4) that such action occurred under circumstances giving rise to an inference of discrimination.” Spires v. Metlife Grp., No. 18-cv-4464 (RA), 2019 WL 4464393, at *7 (S.D.N.Y. Sept. 18, 2019) (quoting Gorzysnki v. JetBlue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010)). In addition, “[t]o survive a Rule 12(b)(6) motion to dismiss, a plaintiff asserting an employment discrimination complaint under the ADEA must plausibly allege that adverse action was taken against her by her employer, and that her age was the ‘but-for' cause of the adverse action.” Marcus v. Leviton Mfg Co., 661 Fed.Appx. 29, 31-32 (2d Cir. 2016); see also Payne v. Malemathew, No. 09-cv-1634 (CS), 2011 WL 3043920, at *2 (S.D.N.Y. July 22, 2011) (“[A]n ADEA complaint must contain sufficient facts to make plausible the conclusion that ‘but for' [her] age, Plaintiff . . . would still be employed.”) (citations omitted).
It is uncontested that Plaintiff was within the protected age group, was qualified for her position, and experienced an adverse employment action. Defendants argue, however, that she has failed to “plausibly plead facts giving rise to an inference of age discrimination, much less that her age was the ‘but-for' cause of her termination.” ECF No. 28, Defendants' Memorandum of Law (“Def. Mem.”) 16. “An inference of discrimination can arise from a variety of circumstances, ‘including, but not limited to, the employer's criticism of the plaintiff's performance in . . . degrading terms [based on her protected characteristic]; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge.'” Pustilnik v. Battery Park City Auth., No. 18-cv-9446 (RA), 2019 WL 6498711, at *4 (S.D.N.Y. Dec. 3, 2019) (quoting Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir. 2015)).
As a threshold matter, Plaintiff cannot bring her federal age discrimination claim against Sulit-Torres because there is no individual liability under the ADEA. Guerra v. Jones, 421 Fed.Appx. 15, 17 (2d Cir. 2011) (holding that the ADEA does not subject individuals, “even those with supervisory liability over the plaintiff” to personal liability). Accordingly, the Court should dismiss Plaintiff's ADEA complaint against Sulit-Torres.
In her Amended Complaint, Plaintiff identifies several comments to suggest an inference of discrimination. Plaintiff alleges that in December 2019, roughly two months before her termination as assistant principal, Sulit-Torres told Plaintiff and the school literacy coach that she was tired of an older teacher and stated: “I want that old bitch to retire.” She also asked Plaintiff: “How old are you again? When are you eligible for retirement?”
The Court of Appeals has identified “four non-dispositive factors appropriately considered in deciding what weight to accord isolated remarks suggestive of discriminatory bias: ‘(1) who made the remark (i.e., a decision-maker, a supervisor, or a low-level co-worker); (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark (i.e. whether a reasonable juror could view the remark as discriminatory); and (4) the context in which the remark was made (i.e., whether it was related to the decision-making process).'” Fried v. LVI Servs., Inc., 500 Fed.Appx. 39, 41 (2d Cir. 2012) (quoting Henry v. Wyeth Pharm., 616 F.3d 134, 149 (2d Cir. 2010)). The fact that the remarks were made by Plaintiff's supervisor, who played a key role in the decision to terminate her probationary employment as assistant principal, as well as Sulit-Torres's distasteful reference to an older teacher as an “old bitch,” gives some weight to Plaintiff's allegation. However, the comments were made two months before Plaintiff's termination, and Plaintiff offers no information on the context in which they were made. Compare Fried, 500 Fed.Appx. at 41 (remark that plaintiff was “71 years of age, how long do you expect to work? What if you're hit by a bus?” made by defendant's new CEO less than six weeks before termination - and made in the context of disputing plaintiff's claimed job duties - given some weight in demonstrating discriminatory bias); with Callistro v. Cabo, No. 11-cv-2897 (DLC), 2013 WL 322497, at *7 (S.D.N.Y. Jan. 25, 2013) (second and fourth factors weigh against a finding that remarks indicative of discriminatory intent where plaintiff did not present “any evidence that tends to show that [the decision-maker] referred to her religion, gender, or age in relation to the decision to fire her or in connection with the termination of her employment”) and Silvers v. Wells Fargo Bank, N.A., No. 15-cv-6721 (KBF), 2016 WL 5875076, at *4 (S.D.N.Y. Oct. 7, 2016) (query as to whether plaintiff had plans for retirement “occurred months before the termination decision, the content of the remarks did not indicate that [the supervisor] actively encouraged plaintiff to retire or evinced concern about his age, and the context of the remark was not related to the decisionmaking process about plaintiff's termination” did not support an inference of discrimination). Therefore, Sulit-Torres's comments are insufficient to give rise to an inference of discrimination, let alone to establish the nexus required to establish that age discrimination was the “but-for” cause of Plaintiff's termination.
Furthermore, Plaintiff has not alleged other indicia of discrimination such that “the remarks can no longer be deemed ‘stray'” and give rise to an inference of discrimination. Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998). In addition to her allegations of discriminatory comments, Plaintiff claims that a 44-year-old who was “significantly younger” replaced her as assistant principal. At the time of the termination, Plaintiff was 54 years old. Because both Plaintiff and her replacement are over the age of 40, they are both within the same protected class for the purposes of the ADEA claim. Pustilnik, 2019 WL 6498711 at *5; see also McDermott v. N.Y.C. Hous. Dev. Corp., No. 10-cv-2029 (HB), 2011 WL 167836, at *5 (S.D.N.Y. Jan. 18, 2011) (54-year-old replacement who was ten years younger than plaintiff was still a member of the protected class). “That a plaintiff is replaced by another in the same protected class weighs heavily against the inference that she suffered discrimination.” Montanile v. Nat'l Broad. Co., 211 F.Supp.2d 481, 487 (S.D.N.Y. 2002).
Finally, although Plaintiff alleges generally that Sulit-Torres favors younger staff members and cites to her promotion of younger teachers with less experience to grade team leader positions, she has not pleaded sufficient facts to show that she “was similarly situated in all material respects to the individuals with whom she seeks to compare herself.” Lopez v. N.Y.C. Dep't of Educ., No. 17-cv-9205 (RA), 2019 WL 2647994, at *3 (S.D.N.Y. June 26, 2019) (quoting Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003)). For example, she does not allege the ages of the teachers who were promoted, or - apart from their years of experience - “any other details about the circumstances surrounding their hires, promotions, or qualifications.” Pustilnik, 2019 WL 6498711, at *6. The mere fact that the promoted individuals were younger does not support an inference of discrimination. Id. This is especially so considering the state court's finding that her termination was based on a sustained record of poor performance.
If the Court does not agree with my conclusion that Plaintiff's disparate treatment claim is unexhausted, I recommend, in the alternative, that it dismiss it for the reasons stated here.
I conclude that Plaintiff has not pleaded facts giving rise to an inference of discrimination or suggesting that her age was the “but-for” cause of her termination, and so recommend that the Court dismiss her discriminatory discharge claim on that ground.
C. Retaliation
If the Court disagrees with my conclusion that Plaintiff's retaliation claim is barred by res judicata, I RECOMMEND THAT the Court dismiss this claim because Plaintiff has failed to allege a causal connection between the filing of the special harassment complaint and her termination. Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 94 (2d Cir. 2001). As Defendants argue, Plaintiff appears to rely on the close temporal proximity between the filing of her special harassment complaint and her termination. While timing of the adverse employment action is certainly relevant to the evaluation of a retaliation claim, where Plaintiff offers “little more than a highly speculative argument” based on the fact that the adverse employment action occurred later in time than plaintiff's protected activity, the causal connection is not established. Mandavia v. Columbia Univ., 912 F.Supp.2d 119, 133 (S.D.N.Y. 2012). Therefore, I recommend that the Court hold, in the alternative, that Plaintiff has failed to state a retaliation claim under the ADEA.
D. Hostile Work Environment
“A work environment will be considered hostile if a reasonable person would have found it to be so and if the plaintiff subjectively so perceived it. A plaintiff must demonstrate that she was subjected to the hostility because of her membership in a protected class.” Brennan v. Metro. Opera Ass'n, 192 F.3d 310, 318 (2d Cir. 1999) (internal citation omitted). A hostile work environment claim is evaluated based on “all 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.” Nat'l R.R. Passenger Corp., 563 U.S. at 116.
Including the two comments from before June 26, 2019, Plaintiff alleges that Sulit-Torres made four age-related comments: asking her when she planned to retire (October 2018), stating that older tenured teachers were as “old as dinosaurs” and needed “to retire already” (April 2019), stating that she wanted an older teacher (who she referred to as an “old bitch”) to retire (December 2019), and asking Plaintiff “How old are you again? When are you eligible for retirement?” (December 2019). These four remarks, standing alone, are not enough to establish a hostile work environment. “Even ‘despicable and offensive' stray remarks ‘fail to constitute discriminatory behavior that is sufficiently severe or pervasive to cause a hostile environment.'” Spinelli v. City of New York, L. Dep't, No. 13-cv-07112 (GBD)(SN), 2016 WL 11482071, at *15 (Aug. 30, 2016), rep. & rec. adopted 2016 WL 5476001 (S.D.N.Y. Sept. 29, 2016) (quoting Brown v. Coach Stores, Inc., 163 F.3d 706, 713 (2d Cir. 1998)); see also Moore v. Verizon, No. 13-cv-6467 (RJS), 2016 WL 825001, at *13 (S.D.N.Y. Feb. 5, 2016) (three age-related comments made by supervisor, including “why don't you retire” and “are you old enough to retire,” insufficient to allege a hostile work environment); Almontaser v. N.Y.C. Dep't of Educ., No. 13-cv-5621 (ILG)(VMS), 2014 WL 3110019, at *8 (E.D.N.Y. July 8, 2014) (allegation that supervisor told plaintiff that he was “too old” and “out of the teaching loop” and “frequently” made remarks such as “when are you going to retire” and “you're too old” insufficient to establish a hostile work environment).
I recommend that the Court dismiss Plaintiff's hostile work environment for failure to state a claim.
E. Conclusion
To the extent not precluded, I recommend that the Court dismiss Plaintiff's discriminatory discharge, hostile work environment, and retaliation claims under the ADEA for failure to state a claim.
V. NYSHRL and NYCHRL Claims
Having recommended the dismissal of Plaintiff's federal claims, I also recommend that the Court dismiss Plaintiff's state law claims under the NYSHRL and NYCHRL without prejudice. “Once a district court's discretion is triggered under [28 U.S.C.] § 1367(c)(3), it balances the traditional ‘values of judicial economy, convenience, fairness, and comity,' in deciding whether to exercise jurisdiction.” Kolari v. N.Y. Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988)). Given that the case has not progressed past the pleading stage, the parties have not proceeded to discovery, and neither party would be prejudiced by litigating the claims in state court, I conclude that the balance of factors weighs in favor of declining to exercise supplemental jurisdiction, especially given the “expansive standard for liability” under the NYCHRL. Mohan v. City of New York, No. 17-cv-3820 (KPF), 2018 WL 3711821, at *16 (S.D.N.Y. 2018).
VI. Leave to Amend
Courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). “Where it appears that granting leave to amend is unlikely to be productive, however, it is not an abuse of discretion to deny leave to amend.” Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002) (internal quotation marks omitted). “One appropriate basis for denying leave to amend is that the proposed amendment is futile . . . An amendment to a pleading is futile if the proposed claim could not withstand a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).” Id. (internal citations omitted).
Plaintiff raises various new allegations in her opposition brief. While not sufficient to amend the complaint, these allegations are properly considered in determining whether to grant Plaintiff leave to file a Second Amended Complaint. Capers, 2016 WL 817452, at *2. First, Plaintiff alleges that teachers appointed as grade team leaders were in their 20s and 30s. ECF No. 31, Plaintiff's Memorandum of Law (“Pl. Mem.”) 2-3. Second, Plaintiff expands her timeline of alleged harassment and discrimination, stating that beginning in April 2019 Sulit-Torres engaged in a pattern of demeaning conduct towards her. Id. at 16. In addition, she received one disciplinary write up per month from Sulit-Torres between October 2019 and February 2020. Id. at 4. Third, she explains that she received disciplinary letters almost immediately after she filed her CSA complaint. Id. at 4--5.
Taken together with the allegations in her Amended Complaint, these allegations are insufficient to state claims for age discrimination under the ADEA. Without more details, the mere fact that the workers selected to serve as grade team leaders were younger than Plaintiff does not establish that she was similarly situated in all respects, and hence is insufficient to establish a disparate treatment claim. Pustilnik, 2019 WL 6498711, at *6. While Plaintiff's additional claims regarding Sulit-Torres's alleged harassment indicate that it was more pervasive than alleged in her Amended Complaint, she does not point to facts indicating that she was subjected to hostility because of her age and so would not be able to establish the elements of a hostile work environment claim under the ADEA. See Brennan, 192 F.3d at 318; see also Lucenti v. Potter, 432 F.Supp.2d 347, 362 (S.D.N.Y. 2006) (“Allegations of even constant reprimands and work criticism by themselves are not sufficient to establish a hostile environment claim”). And although Plaintiff attempts to strengthen her retaliation claim by alleging that she received additional disciplinary letters immediately after filing her CSA complaint, her claims that she began receiving regular disciplinary write ups in September 2019 further undermines it. See Slattery, 248 F.3d at 95 (reasoning close temporal proximity between complaints and adverse employment actions did not give rise to an inference of retaliation where “the adverse employment actions were both part, and the ultimate product, of ‘an extensive period of progressive discipline' . . . [that] began . . . a full five months prior” to the filing of plaintiff's complaint). In addition, having litigated these issues in the Article 78 proceeding without raising these facts there, the interests of justice do not support granting leave to amend. To the extent Plaintiff pursues her state and city claims in state court, she may incorporate those facts there.
Therefore, I conclude that Plaintiff's proposed amendments would be futile, and recommend that the Court deny her request to further amend her complaint.
CONCLUSION
I find that Plaintiff's discriminatory discharge and retaliation claims under the ADEA, as well as her claim for injunctive and declarative relief in the form of reinstatement as assistant principal under state law, are barred by the doctrine of res judicata, and Plaintiff is barred from relitigating the issue of whether Defendants terminated her employment as an assistant principal for a legitimate reason. I also conclude that Plaintiff has failed to exhaust her disparate treatment claim and has not stated any claim for age discrimination under the ADEA. Lastly, I recommend that the Court decline to exercise supplemental jurisdiction over Plaintiff's claims under the NYSHRL and NYCHRL. Accordingly, I recommend the Court grant Defendants' motion to dismiss in its entirety and deny Plaintiff's request to amend her complaint.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the 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. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Analisa Torres at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Torres. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).