Opinion
Civil Action 22 Civ. 3860 (VEC) (SLC)
01-30-2023
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, hostile work environment, and retaliation 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. 1 (the “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 investigation and charging of Nnebe for alleged misconduct relating to her supervision of students. (Id. at 8-11).
Defendants have moved to dismiss the Complaint, with Werner moving under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject jurisdiction and failure to state a claim, respectively, and the City Defendants moving under Rule 12(b)(6) only. (ECF Nos. 25 (“Werner's Motion”); 31 (the “City Defendants' Motion,” with Werner's Motion, the “Motions”)). Nnebe has opposed the Motions and, in the alternative, requested leave to amend (the “Request”). (ECF No. 37 (the “Opposition”)).
For the reasons set forth below, the Court respectfully recommends that the Motions be GRANTED, the Request be GRANTED IN PART and DENIED IN PART, and that Nnebe be granted leave to amend only certain claims.
II. BACKGROUND
The following facts are drawn from the Complaint, the documents attached thereto, and the Opposition, 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).
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. 1 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 and Olivo became the Principal and Assistant Principal of PS 251Q, respectively. (ECF No. 1 at 8 ¶ 3). Barry-Grant is “half black and half white,” and Olivo is “Caucasian[.]” (Id.) The Complaint does not allege Barry-Grant's or Olivo's age or national origin. 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. 1 at 9 ¶ 13; see id. at 22 ¶ 12). Nnebe “filed a grievance against” Barry-Grant regarding the 2016 Report (the “2016 Complaint”). (Id. at 9 ¶ 13). Nnebe does not specify when she filed the 2016 Complaint or whether she complained that the 2016 Report was discriminatory. Aside from claiming that it was “improper[,]” (see id.), Nnebe does not allege any other details concerning the 2016 Report or whether it impacted her employment.
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. 1 at 8 ¶ 5 (the “2019 Reassignment”)). Unlike the SETSS position, which “involves working with students in small groups[,]” the 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.) The 2019 Reassignment “result[ed] in significant changes in [her] responsibilities” (ECF No. 37 at 19), and was an “attempt [] to frustrate [her] so [she] could leave the school.” (ECF No. 1 at 8 ¶ 5). On September 9, 2019, Nnebe “complained to [Barry-Grant] about not being given the SETSS program[,]” (the “Sept. 2019 Complaint”). (Id. at 20). On December 20, 2019, Nnebe “filed a grievance against [Barry-Grant] for [the] oversized class size” (the “Dec. 2019 Complaint,” with the Sept. 2019 Complaint, the “2019 Complaints”). (Id.) Nnebe does not allege that, when making the 2019 Complaints, she complained that the 2019 Reassignment was discriminatory.
Nnebe also alleges that, at an unspecified time, Olivo “removed [her] from a PPT meeting email invitation list, of which [Nnebe is] a key member[,]” (the “PPT Email List”). (ECF No. 1 at 9 ¶ 10). 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, Hearing, and 2020 Complaint
On December 17, 2019, following an investigation (the “Investigation”), Olivo presented Nnebe with 3020-a charges (the “3020-a Charges”) based on “allegations of corporal punishment regarding an incident with a student on October 22, 2019” and a “failure to supervise students engaging in a physical altercation on October 29, 2019.” (ECF No. 37 at 24; see ECF No. 1 at 9 ¶¶ 11, 15).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 “Hearing”). (ECF No. 1 at 9 ¶ 15; see id. at 9 ¶ 11). Nnebe “strongly dispute[s]” the 3020-a Charges. (ECF No. 37 at 25). Werner represented Nnebe in the Investigation (ECF No. 1 at 10 ¶ 21), and Nnebe's union provided her with legal representation for the 3020-a Charges and the Hearing. (Id. at 20).
New York Education Law 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).
Nnebe does not allege the date of the Hearing.
Nnebe alleges that “Olivo tampered with [the] corporal punishment [I]nvestigation” in several ways. (ECF No. 1 at 10 ¶ 17). 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 9 ¶ 15; see Id. at 10 ¶¶ 17-18). At the Nov. 4 Meeting, Olivo “showed [Nnebe] a statement written by a student about an incident.” (Id. at 10 ¶ 18). “[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, “[a]t the [] [H]earing, [] 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.)
Likewise, at the Nov. 7 Meeting, Olivo showed Nnebe a picture of a student's bruised hand, which the student claimed Nnebe had caused. (Id. at 10 ¶ 17). 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 . . . even at the [] [H]earing[,]” 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 10 ¶ 19; see id. at 9 ¶ 12). Nnebe believes that Olivo “made . . . Dingfelder write a statement stating that a student reported to him that [Nnebe] scratched her hand and indented it with a fingernail.” (Id. at 9 ¶ 14). 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 10 ¶ 19). Nnebe alleges that Dingfelder “did not witness any incident between [her and] the student[,]” (id.), and that, at the Hearing, “Olivo stated that she was aware of the incident from another source.” (Id. at 9 ¶ 14).
Nnebe also alleges that Werner, who is white, “deceived” her and “work[ed] together with [] Olivo to push [Nnebe] out of the school because [she is] an older black teacher.” (ECF No. 1 at 9 ¶¶ 15-16; ECF No. 37 at 25).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.” (ECF No. 1 at 9 ¶ 15). 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 9 ¶ 16). 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 9-10 ¶ 16). “Olivo said during the [] [H]earing 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. at 10 ¶ 16). Finally, Werner “told his co-teacher about” the 3020-a Charges, even though he was “supposed to keep this case confidential.” (Id. at 10 ¶ 21). 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 10-11 ¶ 21).
The Complaint does not specify Werner's age or national origin.
Nnebe alleges that her Dec. 2019 Complaint also included “a grievance” against Barry-Grant for the “improper [I]nvestigation[.]” (ECF No. 1 at 20). On January 13, and 16, 2020, Nnebe “filed for improper investigation and tampering with investigation [sic] against [] Olivo with the [] Office of Special Investigation[,]” (“OSI”). (Id. (the “2020 Complaint”)).
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. 1 at 11 ¶ 22). Nnebe separately alleges that, “[d]ue to the pending charges, [she has] suffered a loss of per session income.” (Id. at 11 ¶ 26; see ECF No. 37 at 15).
In February 2020, Nnebe “was reassigned to PS 156” (the “2020 Reassignment”). (ECF No. 37 at 13; see ECF No. 1 at 19).
4. Allegations of Discriminatory Intent
Nnebe alleges that she was “discriminated against because of [her] age and race.” (ECF No. 1 at 8 ¶ 6). To support this claim, Nnebe alleges, inter alia, that:
Since this administration took over the school, the majority of black teachers have not worked until they are 55 years old or work for 25 years, the retirement criteria. The administration disproportionately targets older black teachers for termination. During the 2018/2019 school year, Ms. Perkins, a black teacher less than 55 years old, retired as a result of being harassed. In 2019, Ms. Holloway, a black teacher with about 20 years of teaching experience, was put on administrative duty by this administration because they had some disagreement. (Id. at 8 ¶ 7).
This same administration charged Ms. Phyllis Pryor-Shaw, a black teacher with about 25 years of teaching [] experience with wrongdoing in 2016/2017 and 2017/2018 school years, about four times and the cases were investigated by OSI and SCI [the Special Commissioner for Investigation] and dropped. In 2018/2019 school year, Mr. Witsell, a black teacher was given an ineffective rating, and denied tenure, and forced to leave the school because students would fight in his class. (Id. at 20).
Out of 16 teachers employed in the first three years of the current administration, at the time of charges were brought to me [sic], fourteen are White, one Asian, the other Spanish, and none are black. The only two black teachers at the school were ATRs (Absent teachers on reserve), and were sent to the school by DOE central administration, and not hired by the principal. (Id. at 8 ¶ 8).
White teachers such as, Melissa Dorosario [“Dorosario”], Gregory Belmonte [“Belmonte”], Kristin Zeuch [“Zeuch”], Keith Donnelly [“Donnelly”], Richard Hodgkinson [“Hodgkinson”], Courtney Cully-Heckman [“Cully-Heckman”], [and] [] Dingfelder, who had students fight in their classes were not terminated like [Nnebe] was. (Id. at 9 ¶ 12).
[O]n October 29, 2019, the day of the incident leading to the allegations of failure to supervise against [Nnebe], [] Belmonte, [] Werner and [] Hodgkinson were
assigned to supervise the same students when an argument started between some students on or around 8 am. They failed to supervise the students in the morning and caused the existing argument to continue in [Nnebe's] classroom at 11 am, but were not served with 3020-a charges when [Nnebe] was.
Although Nnebe alleges in the Complaint that the DOE “terminated” her employment (see, e.g., ECF No. 1 at 5, 9 ¶ 12), she concedes in her Opposition that she has “not actually been terminated[.]” (ECF No. 37 at 19).
(ECF No. 37 at 10). Nnebe also alleges that Barry-Grant and Olivo “are retaliating against [her] by bringing false charges” based on the 2016 Complaint. (Id. at 11).
5. 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. 1 at 6, 11 ¶ 24; see Id. at 15-24; ECF No. 37 at 29). On January 29, 2022, Nnebe and the DOE attended a meeting to discuss resolving the Administrative Complaint. (ECF No. 1 at 11 ¶ 27). 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.)
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. 1 at 6, 13). On February 14, 2022, Nnebe received the Notice. (Id. at 6).
In the Complaint, Nnebe makes the conclusory allegation that she has “been subject to additional acts of retaliation” since filing the Administrative Complaint, without specifying what those acts are, who made them, or provide any other details. (ECF No. 1 at 11 ¶ 24). In her Opposition, however, Nnebe alleges that, since filing the Administrative Complaint, “the principal at PS 156” (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) the 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. 37 at 14 (the “PS 156 Retaliatory Acts”)).
B. Procedural Background
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,” with the Title VII and ADEA Claims, the “Federal Claims”), the NYSHRL (the “NYSHRL Claims”), and the NYCHRL (the “NYCHRL Claims”). (ECF No. 1 at 3-4).
On July 12, 2022, Werner filed his Motion. (ECF No. 25). On July 18, 2022, the Honorable Valerie E. Caproni referred this matter for general pretrial supervision and dispositive motions. (ECF No. 27). On August 17, 2022, the City Defendants filed their Motion. (ECF No. 31).
On October 4, 2022, Nnebe filed the Opposition. (ECF No. 37). On October 10, 2022, Werner filed a reply. (ECF No. 38). The City Defendants did not file a reply.
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), and may consider “documents attached . . . as exhibits, and documents incorporated by referenced” 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) (“Although this allegation appears in his opposition papers, the Court-consistent with its duty to liberally construe pro se pleadings-will credit Plaintiff's assertion 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) (“For the purposes of deciding this motion, the Court accepts as true all facts in Plaintiff's complaint and opposition papers.”); Flores v. N.Y.C. Human Res. Admin., No. 10 Civ. 2407, 2011 WL 3611340, at *1 n. 1 (S.D.N.Y. Aug. 16, 2011) (“Because of [plaintiff's] pro se status, . . . the Court may consider factual allegations [plaintiff] makes in her opposition papers, in addition to the allegations in the complaint[.]”); Burgess v. Goord, No. 98 Civ. 2077 (SAS), 1999 WL 33458, at *1 (S.D.N.Y. Jan. 26, 1999) (“In general, a court may not look outside the pleadings when reviewing a Rule 12(b)(6) motion to dismiss. However, the mandate to read the papers of pro se litigants generously makes it appropriate to consider plaintiff's additional materials, such as his opposition memorandum.”).
B. Individual Liability under Title VII and the ADEA
Defendants argue that Nnebe's Title VII and ADEA Claims against Barry-Grant, Olivo, and Werner should be dismissed because neither statute permits individual liability. (ECF Nos. 26 at 12; 32 at 13-14). Nnebe “do[es] not dispute that [the] individually named Defendants are not liable under the ADEA and Title VII[,]” though she purports to condition this concession on Defendants' agreement that the DOE “remains as a Defendant, and [Barry-Grant], [] Olivio and [] Werner remain Defendants under the NYSHRL and the NYCHRL[.]” (ECF No. 37 at 30).
The Court separately addresses Nnebe's claims against the DOE and her NYSHRL and NYCHRL claims against Barry-Grant, Olivo, and Werner. (See §§ III.D-H, infra).
In the Second Circuit, “it is long settled that individual defendants may not be subject to liability under Title VII.” Williams v. N.Y.C. Dep't of Educ., 2018 WL 4735713, at *4 (citing Patterson v. Cnty. Of Oneida, 375 F.3d 206, 221 (2d Cir. 2004)). “[A]s far as the term ‘employer' is concerned, the ADEA was modeled after Title VII[.]” Wray v. Edward Blank Assocs., Inc., 924 F.Supp. 498, 503 (S.D.N.Y. 1996). Courts have, therefore, consistently held that the ADEA does not impose liability on individuals. Williams v. N.Y.C. Dep't of Educ., 2018 WL 4735713 at *4 (collecting cases); see Guerra v. Jones, 421 Fed.Appx. 15, 17 (2d Cir. 2011) (holding that dismissal of Title VII and ADEA claims against individual defendants “was appropriate as neither statute subjects individuals, even those with supervisory liability over the plaintiff, to personal liability”).
Accordingly, the Court respectfully recommends that the Motions be GRANTED as to Nnebe's ADEA and Title VII Claims against Barry-Grant, Olivo, and Werner, and those claims be DISMISSED WITH PREJUDICE.
C. Section 1981 Claims
Nnebe asserts claims under Section 1981 against the City Defendants (ECF No. 1 at 4), who argue that “Section 1981 does not provide a separate private right of action against state actors” and, as a result, Nnebe's Section 1981 Claims “must be dismissed as a matter of law.” (ECF No. 32 at 12 (citing Yu v. City of New York, 792 Fed.Appx. 117, 119 (2020))). Nnebe does not directly respond to this argument, but asserts that, “[a]lternatively, [her] Section 1981 claim can be construed as a” 42 U.S.C. § 1983 (“Section 1983”) claim. (ECF No. 37 at 17).
Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts[.]” 42 U.S.C. § 1981(a). The Civil Rights Act of 1991 expanded Section 1981 to prohibit discrimination occurring after contract formation “with respect to the enjoyment of benefits, privileges, terms, and conditions of a contractual relationship, such as employment[.]” Patterson, 375 F.3d at 224.
“In Duplan v. City of New York, however, the Second Circuit held that ‘[Section] 1981 does not provide a separate private right of action against state actors.'” Gonzalez v. City of New York, 377 F.Supp.3d 273, 284 (S.D.N.Y. 2019) (quoting Duplan v. City of New York, 888 F.3d 612, 621 (2d Cir. 2018)). As other courts in this District have recognized, “the Second Circuit reached this conclusion because it found that [Section 1983] already provided a remedy against state actors and that therefore, ‘there is no reason to infer from the rights-conferring language of [Section] 1981[] that it creates an additional, and duplicative, remedy.'” Gonzalez, 377 F.Supp.3d at 284 (quoting Duplan, 888 F.3d at 620-21).
Since Duplan, courts in this District considering pro se plaintiffs' Section 1981 claims against state actors have construed them as asserting Section 1983 claims. See Kuperman v. City of New York, No. 20 Civ. 6834 (LTS) (DCF), 2021 WL 4442855, at *5 (S.D.N.Y. Sept. 28, 2021) (noting that “courts in this District generally construe [S]ection 1981 claims against government entities-especially those brought by pro se plaintiffs-‘as causes of action brought under [Section] 1983,' and ‘discuss whether the claims can survive pursuant to [Section] 1 983 caselaw'”) (quoting In re N.Y.C Dep't of Educ., No. 15 Civ. 7150 (AJN), 2019 WL 1433163, at *5 (S.D.N.Y. Mar. 29, 2019)); see also Collymore v. City of New York, 767 Fed.Appx. 42, 45 n.2 (2d Cir. 2019) (summary order) (noting that district court correctly construed Section 1981 claims as Section 1983 claims pursuant to Duplan).
“Section 1983 grants a right of action to any ‘citizen of the United States or other person within the jurisdiction thereof' who has been deprived of ‘any rights, privileges, or immunities secured by the Constitution' or federal law by a person acting under color of state law.” Hirsch v. City of New York, 300 F.Supp.3d 501, 508 (S.D.N.Y.) (quoting 42 U.S.C. § 1983), aff'd, 751 Fed.Appx. 111 (2d Cir. 2018); see Pridgen v. Jail, No. 22 Civ. 2294 (ER), 2022 WL 1082411, at *1 (S.D.N.Y. Apr. 6, 2022) (“Section 1983 provides that an action may be maintained against a ‘person' who has deprived another of rights under the ‘Constitution and Laws.'”) (quoting 42 U.S.C. § 1983). To state a Section 1983 claim, “a complaint must allege that the defendant (1) deprived the plaintiff of rights secured by the Constitution and laws of the United States, (2) while acting under color of state law.” Chamberlain v. City of White Plains, 986 F.Supp.2d 363, 381 (S.D.N.Y. 2013) (citing 42 U.S.C. § 1983); see Lurch v. Chaput, No. 16 Civ. 2517 (AT), 2022 WL 889259, at *5 (S.D.N.Y. Mar. 25, 2022) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).
Here, Nnebe alleges that the City Defendants discriminated and retaliated against her and created a hostile work environment based on her race, national origin, and age. (ECF No. 1 at 35). Viewed in light of Section 1983 precedent, these allegations most closely resemble an alleged “violation of the right to equal protection of the laws under the Fourteenth Amendment to the United States Constitution, which similarly protects against disparate treatment, a hostile work environment, and retaliation.” Jenkins v. NYC Health & Hosps. Corp., No. 21 Civ. 2848 (JGK), 2022 WL 2833804, at *3 (S.D.N.Y. July 19, 2022) (citing Naumovski v. Norris, 934 F.3d 200, 212 (2d Cir. 2019)); see Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 80 (2d Cir. 2015).
Accordingly, the Court respectfully recommends that Nnebe's Section 1981 Claims be construed as Section 1983 claims alleging violations of the Equal Protection Clause (the “Section 1983 Claims”). The Court addresses below whether Nnebe has plausibly alleged a Section 1983 claim. (See §§ III.D-G, infra).
D. Discrimination Claims Against the City Defendants
Nnebe alleges that the City Defendants discriminated against her because of her race, color, national origin, and age, in violation of Title VII (the “Title VII Discrimination Claim”), the ADEA (the “ADEA Discrimination Claim”), NYSHRL (the “NYSHRL Discrimination Claim”), NYCHRL (the “NYCHRL Discrimination Claim”), and the Equal Protection Clause under Section 1983 (the “Section 1983 Discrimination Claim”) (together, the “Discrimination Claims”). (ECF No. 1 at 3-5). The City Defendants argue that the Discrimination Claims fail as a matter of law. (ECF No. 32 at 14-25).
For the reasons set forth below, the finds that Nnebe has failed to plausibly allege that the City Defendants discriminated against her based on any protected category.
1. Legal Standard
Under Title VII, 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).
2. Application
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. They argue that Nnebe has failed to plausibly allege the third and fourth elements, i.e., that she suffered an adverse employment action under circumstances giving rise to an inference of discrimination. (ECF No. 32 at 14-25). The Court addresses each argument.
a. Adverse Employment Action
Nnebe premises her Discrimination Claims against the City Defendants on the following alleged adverse employment actions: (i) Olivo's “issuance of Section 3020-a [C]harges and attempt to remove [her] from payroll” in the Hearing, which resulted in the “denial of [Nnebe's] security clearance due to the pending 3020-a [C]harges[,] causing [her] to lose [her] position and income with the early intervention school program[,]” and “a loss of per session income[,]” (ii) the 2019 Reassignment from the SETSS position to the Cluster Position, “resulting in significant changes in responsibilities[,]” and (iii) her “exclusion from important emails” after Olivo removed her from the PPT Email List. (ECF No. 37 at 19-20 (citing ECF No. 1 at 8-11, ¶¶ 5, 11, 22)).
As noted above (see n.6, supra), Nnebe concedes that she has “not actually been terminated[.]” (ECF No. 37 at 19).
The City Defendants argue that the 3020-a Charges and the Hearing were not adverse employment actions because they were merely “an attempt to terminate [her] and an attempt to remove her from payroll” that did not actually result in her termination or removal from payroll. (ECF No. 32 at 17 (emphasis added)). Regarding Nnebe's alleged loss of her position with, and income from, the early intervention school program due to the 3020-a Charges, the City Defendants argue that Nnebe “makes no other reference to the early intervention school program anywhere else in her Complaint or Complaint Addendum or indicate that her position with the early intervention school program was with Defendant DOE.” (Id.) Regarding the 2019 Reassignment, the City Defendants argue that “[a]lthough [Nnebe]'s responsibilities may have changed, what [she] describes does not amount to . . . an adverse employment action.” (Id. at 16).
“A plaintiff sustains an adverse employment action if she endures a ‘materially adverse change' in the terms and conditions of employment.” Trachtenberg v. Dep't of Educ. of City of New York, 937 F.Supp.2d 460, 467 (S.D.N.Y. 2013) (quoting Malcolm v. Honeoye Falls Lima Cent. Sch. Dist., 483 F. App'x. 660, 662 (2d Cir. 2012)). A materially adverse change is one that is “more disruptive than a mere inconvenience or an alteration of job responsibilities.” White v. Andy Frain Servs., Inc., 629 Fed.Appx. 131, 133 (2d Cir. 2015). Examples of materially adverse changes include “termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.” Reynoso v. All Foods, Inc., 908 F.Supp.2d 330, 338 (E.D.N.Y. 2012). “The Supreme Court has explained that an adverse action must be materially adverse, and that ‘normally petty slights, minor annoyances, and simple lack of good manners' will not rise to the level of an adverse action.” Garcia v. NYC Health & Hosps. Corp., No. 19 Civ. 997, 2019 WL 6878729, at *8 (S.D.N.Y. Dec. 17, 2019) (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
Nnebe's removal from the PPT Email List did not constitute an adverse employment action. While she claims that the emails and memos she did not receive were “important” (ECF No. 37 at 19), Nnebe offers no facts to suggest that her exclusion resulted in a materially adverse change in the terms and conditions of her employment. See Betterson v. HSBC Bank USA, N.A., 661 Fed.Appx. 87, 90 (2d Cir. 2016) (finding that “[e]xclusion from certain meetings [was] not an adverse employment action” where the plaintiff “could still do her job and there [was] no evidence that she was disadvantaged by that exclusion”); MacAlister v. Millenium Hotels & Resorts, No. 17 Civ. 6189 (ER), 2018 WL 5886440, at *4 (S.D.N.Y. Nov. 8, 2018) ("[E]xclusion from meetings . . . [is] typically not adverse.”); LeeHim v. N.Y.C. Dep't of Educ., No. 17 Civ. 3838 (PAE), 2017 WL 5634128, at *4 (S.D.N.Y. Nov. 21, 2017) ("Exclusion from meetings . . . typically does not constitute an adverse employment action.”) (collecting cases); Geller v. N. Shore Long Island Jewish Health Sys., No. 10 Civ. 170 (JS) (WDW), 2013 WL 5348313, at *10 (E.D.N.Y. Sept. 23, 2013) (finding that a plaintiff's "allegations regarding her exclusion from emails [were] too minimal to be considered adverse employment actions”); cf., Asanjarani v. City of New York, No. 09 Civ. 7493 (JCF), 2011 WL 4343687, at *14 (S.D.N.Y. Aug. 18, 2011) (finding that a plaintiff's exclusion from work related meetings and emails did not constitute adverse employment actions where the plaintiff failed to establish that "exclusion prevent[ed] [him] from receiving critical training in his field necessary for his advancement”). Nnebe's Complaint is "far too general on this point” and "fails to allege any specific [email or] meeting from which [she] was excluded, precluding any finding that exclusion . . . amounted to a ‘significant' diminishment of her responsibilities.” LeeHim, 2017 WL 5634128, at *4.
As to the 2019 Reassignment and the 3020-a Charges, however, the Court finds that Nnebe has plausibly alleged both acts constituted adverse employment actions. Looking first at the 2019 Reassignment, "[a] reassignment to a less desirable position can constitute an adverse employment action, but ‘not every unpleasant matter short of [discharge or demotion] creates a cause of action for retaliatory discharge.'” Hardy v. Pepsi Bottling Co. of N.Y., Inc., No. 14 Civ. 4007 (VEC), 2016 WL 1301181, at *6 n.6 (S.D.N.Y. Mar. 31, 2016) (quoting Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997)). "[A] transfer is an adverse employment action if it results in a change in responsibilities so significant as to constitute a setback to the plaintiff's career.” De Jesus-Hall v. New York Unified Ct. Sys., 856 Fed.Appx. 328, 330 (2d Cir. 2021). A plaintiff can make such a showing by demonstrating that the new assignment was “materially less prestigious, materially less suited to [her] skills and expertise, or materially less conducive to career advancement.” Sotomayor v. City of New York, 862 F.Supp.2d 226, 255 (E.D.N.Y. 2012), aff'd, 713 F.3d 163 (2d Cir. 2013). Similarly, “the assignment of ‘a disproportionately heavy workload' can constitute an adverse employment action.” Vega, 801 F.3d at 85 (quoting Feingold v. New York, 366 F.3d 138, 152-53 (2d Cir. 2004)).
Nnebe has plausibly alleged that the 2019 Reassignment constituted an adverse employment action. She claims that, after holding the SETSS position for almost twenty years, she was reassigned to the Cluster Position, which, unlike the SETSS 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.” (ECF No. 1 at 8 ¶ 5). According to Nnebe, this “result[ed] in significant changes in [her] responsibilities[.]” (ECF No. 37 at 19). Construing Nnebe's allegations liberally and to raise the strongest arguments that they suggest, see Williams v. N.Y.C. Dep't of Educ., 2018 WL 4735713, at *1, the Court finds that she has pled sufficient facts to plausibly suggest the 2019 Reassignment was materially adverse. See Carmellino v. Dist. 20 of N.Y.C. Dep't of Educ., No. 03 Civ 5942 (PKC), 2006 WL 2583019, at *29 (S.D.N.Y. Sept. 6, 2006) (finding that a transfer requiring a teacher to teach “outside her license area . . . if true, would arguably constitute a materially adverse change in the terms or conditions of her employment”).
Similarly, Nnebe has plausibly alleged that the 3020-a Charges constituted an adverse employment action. While the City Defendants correctly note that the 3020-a Charges and Hearing have not yet resulted in Nnebe's removal from payroll or termination, “being served with Section 3020-a charges constitutes an adverse employment action in this Court.” Brown v. N.Y.C. Dep't of Educ., No. 20 Civ. 2424 (VEC) (OTW), 2021 WL 4943490, at *8 (S.D.N.Y. Aug. 31, 2021), adopted by, 2021 WL 4296379 (S.D.N.Y. Sept. 20, 2021) (citing Siclari v. N.Y.C. Dep't of Educ., No. 19 Civ. 7611 (AJN), 2020 WL 7028870, at *7 (S.D.N.Y. Nov. 30, 2020) (“Plaintiff's allegations regarding the imposition of Section 3020-a charges . . . are enough to constitute a materially adverse employment action.”); see Lopez v. N.Y.C. Dep't of Educ., No. 17 Civ. 9205 (RA), 2020 WL 4340947, at *7 (S.D.N.Y. July 28, 2020) (“[C]ourts in this Circuit have presumed that the imposition of Section 3020-a charges constitutes a materially adverse employment action for the purposes of an ADEA claim” and “under related statutes and laws”) (collecting cases). Moreover, Nnebe has alleged that, as a result of the pending 3020-a Charges, she “was denied security clearance . . . causing [her] to lose [her] position and income with the early intervention school program[,]” and has “suffered a loss of per session income.” (ECF No. 1 at 11 ¶ 22, 26). These allegations support her claim that the 3020-a Charges constituted an adverse employment action. See Bagarozzi v. N.Y.C. Dep't of Educ., No. 18 Civ. 4893 (RA), 2019 WL 1454316, at *5 (S.D.N.Y. Mar. 31, 2019) (finding plausible adverse employment action where the plaintiff “allege[d] that when she was served with disciplinary charges, she was ‘reassigned from her teaching assignment' which rendered her ‘unable to earn any per session and summer school pay-which she had obtained the previous three years- causing her significant economic loss'”); cf., Zoulas v. N.Y.C. Dep't of Educ., 400 F.Supp.3d 25, 54 (S.D.N.Y. 2019) (“[A] plaintiff's inability to pursue per session work as a result of poor performance reviews rises to the level of an adverse employment action.”).
It appears that the 3020-a Charges remained pending as of the filing of the Complaint. (See ECF No. 1 at 11 ¶ 27).
Accordingly, the Court finds that the 2019 Reassignment and the 3020-a Charges-but not her removal from the PPT Email list-constitute adverse employment actions. The Court proceeds to analyze whether Nnebe plausibly alleges that 2019 Reassignment and the 3020-a Charges occurred under circumstances suggesting age, race, or national origin discrimination.
b. Inference of Discrimination
To support her claim that the City Defendants were motivated by discriminatory animus, Nnebe alleges 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 (the “Discriminatory Hiring Practices Allegation”), 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. 1 at 8 ¶¶ 7-8; see ECF No. 37 at 22-23). Regarding the Discriminatory Discipline Allegations, the City Defendants argue that “the seven white teachers [Nnebe] compares herself to are not suitable comparators because the conduct of the White teachers was not of comparable seriousness.” (ECF No. 32 at 21). The City Defendants do not address the Discriminatory Hiring Practices Allegation.
“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)).
The Court finds that Nnebe's Discriminatory Hiring Practices Allegation fails to support a plausible inference that the 2019 Reassignment or 3020-a Charges occurred under discriminatory circumstances. While she claims that Barry-Grant and Olivo did not hire any black employees during their first three years at ¶ 251Q, Nnebe provides no detail as to the number or qualifications of the applicants and the individuals hired. As a result, her allegation “does 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.”).
Nnebe's Disparate Discipline Allegations are also insufficient to support a plausible inference of discrimination. 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 fail to support a plausible inference of discrimination because she does not claim that the alleged comparators engaged in conduct of comparable seriousness. 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. 1 at 9 ¶ 12; see ECF No. 37 at 2425). 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 her allegations as true, Nnebe has failed plausibly allege that the City Defendants took any action 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”); cf., Hamilton v. DeGennaro, No. 17 Civ. 7170 (KPF), 2019 WL 6307200, at *11 (S.D.N.Y. Nov. 25, 2019) (on summary judgment, dismissing DOE paraprofessional's discrimination claims based on alleged disparate disciplining for engaging in 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”). Even under the more liberal standard applicable to Nnebe's NYCHRL Discrimination claim, the absence of the requisite causal connection between her race, color, national origin, or age and the alleged discrimination is fatal. 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).
Accordingly, the Court respectfully recommends that the City Defendants' Motion be GRANTED as to Nnebe's Discrimination Claims and those claims be DISMISSED WITHOUT PREJUDICE.
E. Retaliation Claims Against the City Defendants
Nnebe alleges that the City Defendants retaliated against her for filing the 2016 Complaint and the Administrative Complaint, in violation of Title VII (the “Title VII Retaliation Claim”), the ADEA (the “ADEA Retaliation Claim”), the Equal Protection Clause under Section 1983 (the “1983 Retaliation Claim”), the NYSHRL (the “NYSHRL Retaliation Claim”), and the NYCHRL (the “NYCHRL Retaliation Claim”) (together, the “Retaliation Claims”). (ECF Nos. 1 at 9, 11 ¶¶ 13, 24; 37 at 14). 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[,]” (ii) even if the 2016 Complaint constituted protected activity, Nnebe fails to allege that Barry-Grant or Olivo were aware of it, (iii) in any event, Nnebe “has not alleged any facts of a causal connection between” the 2016 Complaint and the 3020-a Charges, and (iv) Nnebe fails to allege any facts to support her Retaliation Claims regarding the Administrative Complaint. (ECF No. 32 at 27-29). In her Opposition, Nnebe alleges that the PS 156 Principal engaged in the PS 156 Retaliatory Acts in retaliation for her filing of the Administrative Complaint. (ECF 37 at 14). The City Defendants did not file a reply and, thus, did not respond to Nnebe's allegations regarding the PS 156 Retaliatory Acts.
For the reasons set forth below, the Court finds that Nnebe has failed to plausibly allege that the City Defendants retaliated against her for engaging in protected activity.
1. 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 decide explicitly whether 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).
“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).
2. Application
The Court interprets Nnebe to be asserting that the 2016 Complaint, 2019 Complaints, 2020 Complaint, and Administrative Complaint constituted protected activity. (ECF No. 1 at 9, 11 ¶¶ 13, 24; id. at 20). The Court finds that none of these activities support a plausible retaliation claim.
“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). It “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 co-workers 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)).
Nnebe's allegations concerning the 2016 Complaint, 2019 Complaints, and 2020 Complaint are deficient for the same reason: she fails to plead any facts suggesting that these complaints were “about some act that [she] reasonably and in good faith believe[d] is unlawful under the anti-discrimination laws.” Batiste, 2017 WL 2912525, at *10. Regarding the 2016 Complaint, Nnebe alleges only that she “filed a grievance against [Brarry-Grant] for an improper observation report[,]” i.e., the 2016 Report. (ECF No. 1 at 22 ¶ 12). Similarly, with respect to the 2019 Complaints, she alleges only that she “complained to [Barry-Grant] about not being given the SETSS program[,]” and “filed a grievance against [Barry-Grant] for [the] oversized class size and improper investigation[.]” (ECF No. 1 at 20). Finally, Nnebe alleges that, in the 2020 Complaint, she “filed for improper investigation and tampering with investigation [sic] against [] Olivo with the OSI[.]” (Id.) “[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 v. N.Y.C. Dep't of Educ., No. 20 Civ. 1555 (PGG) (SLC), 2021 WL 8013770, at *11 (S.D.N.Y. May 7, 2021), adopted by, 2022 WL 621956 (S.D.N.Y. Mar. 3, 2022); 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”).
Nnebe's Retaliation Claims based on the 2016 Complaint are especially dubious because it appears that nearly three years lapsed between this complaint and the earliest alleged adverse employment action, i.e., the 2019 Reassignment. Nnebe does not specify when she lodged the 2016 Complaint, but 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. 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).
Nnebe's allegations concerning the Administrative Complaint are equally deficient. Although that complaint was protected activity, Little, 210 F.Supp.2d at 384, Nnebe “fails to plead that the ‘actual decisionmaker' responsible for [ensuing] the adverse actions was aware of her protected activity, as the law requires.” Williams v. Time Warner Inc., No. 09 Civ. 2962 (RJS), 2010 WL 846970, at *5 (S.D.N.Y. Mar. 3, 2010), aff'd, 440 Fed.Appx. 7 (2d Cir. 2011). In her Opposition, Nnebe alleges that the PS 156 Principal engaged in the PS 156 Retaliatory Acts in retaliation to Nnebe's filing of the Administrative Complaint. (ECF No. 37 at 14). She fails, however, to allege any facts suggesting that the PS 156 Principal was aware of the Administrative Complaint. As a result, she fails to plausibly allege a causal connection between the Administrative Complaint and the PS 156 Retaliatory Acts. See Mitchell, 2021 WL 8013770, at *11 (finding that the plaintiff failed to plead a restitution claim where “there [was] no indication that the decisionmakers responsible for any adverse employment action knew about” the alleged protected activity).
Accordingly, the Court respectfully recommends that the City Defendants' Motion be GRANTED as to Nnebe's Retaliation Claims and those claims be DISMISSED WITHOUT PREJUDICE.
F. Hostile Work Environment Claims Against the City Defendants
Nnebe alleges that the City Defendants created a hostile work environment (“HWE”) based on her race, age, and national origin, in violation of Title VII (the “Title VII HWE Claim”), the ADEA (the “ADEA HWE Claim”), the Equal Protection Clause under Section 1983 (the “Section 1983 HWE Claim”), the NYSHRL (the “NYSHRL HWE Claim,” with the Title VII, ADEA, and Section 1983 HWE Claims, the “Non-NYCHRL HWE Claims”), and the NYCHRL (the “NYCHRL HWE Claim,” with the Non-NYCHRL HWE Claims, the “HWE Claims”). (ECF Nos. 1 at 3-5; 37 at 26-28). The City Defendants argue that the Non-NYCHRL HWE Claims fail because Nnebe “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. 32 at 26-27). 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 27).
For the reasons set forth below, the finds that Nnebe has failed to plead a plausible HWE claim under any statute.
1. 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 HWE, “[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.
2. Application
The Court finds that the HWE Claims fail as a matter of law. With respect to her Non-NYCHRL HWE 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). 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. 37 at 26-30). These acts, however, “represent distinct instances that are not sufficiently ‘continuous and concerted' nor “severe or pervasive” to establish a hostile work environment.” Everett, 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 v. N.Y.C Dep't of Educ., No. 19 Civ. 5326 (JGK), 2020 WL 4735299, at *4 (S.D.N.Y. Aug. 14, 2020) (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).
In any event, with respect to the HWE Claims, including the NYCHRL HWE Claim, Nnebe alleges no facts to plausibly suggest that the City Defendants subjected her to the purported hostility because of any of her protected characteristics. See Panchishak v. Cnty. of Rockland, No. 20 Civ. 10095 (KMK), 2021 WL 4429840, at *5 (S.D.N.Y. Sept. 27, 2021) (dismissing hostile work environment claim where “[n]one of the conduct alleged by Plaintiff . . . involve[d] comments which reference to protected categories like sex or national origin-based motives”); Kugel v. Queens Nassau Nursing Home Inc., 568 F.Supp.3d 253, 265 (E.D.N.Y. 2021) (dismissing NYCHRL HWE claim where the plaintiff “fail[ed] to adequately demonstrate that any less favorable treatment she may have endured was because of her” protected characteristic); Rettino, 2020 WL 4735299, at *4 (dismissing HWE claim where the plaintiff “provide[d] no support for the proposition that he was accused of corporal punishment or that subsequent Section 3020-a charges were filed against him as a result of his age”); Trujillo, 2016 WL 10703308, at *14 (“In order to state a claim for hostile work environment based on discriminatory animus, a plaintiff must adequately plead a causal connection between his protected status and the alleged hostile work environment.”); Briante v. Longwood Cent. Sch. Dist., No. 15 Civ. 3200 (DRH) (GRB), 2016 WL 1056569, at *4 (E.D.N.Y. Mar. 16, 2016) (A “hostile work environment claim is properly dismissed [when the] plaintiff has failed to allege sufficient facts to support [the inference] that the conduct giving rise to the alleged hostile work environment occurred ‘because of [his] membership in a protected class[]'”) (quoting Ventimiglia v. Hustedt Chevrolet, No. 05 Civ. 4149 (DRH), 2009 WL 803477, at * 6 (E.D.N.Y. Mar, 25, 2009)).
Accordingly, for the reasons set forth above, the Court respectfully recommends that the City Defendants' Motion be GRANTED as to all of Nnebe's HWE Claims and those claims be DISMISSED WITHOUT PREJUDICE.
G. Municipal Liability
To the extent that Nnebe is asserting a municipal liability claim under Sections 1981 or 1983 against the City or DOE, or against Barry-Grant or Olivo in their official capacities, under Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), she has failed to state a claim because the Complaint does not identify a municipal policy that allegedly caused the constitutional violation.
“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).
Nnebe does not identify a municipal policy that led to any purported constitutional violation, which is fatal to her claim against Defendant DOE. She cannot predicate Monell liability on Berry-Grant's or Olivo's acts of discipline and school administration, because the Second Circuit recognizes that 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”). Nevertheless, given Nnebe's pro se status, the Court respectfully recommends that the dismissal of Nnebe's Monell claims be without prejudice. See Moton v. City of New York, No. 15 Civ. 6485 (GBD) (JLC), 2016 W 3554993, at *3 (S.D.N.Y. June 24, 2016) (dismissing pro se complaint and permitting plaintiff to amend all claims, including his Monell claim).
Accordingly, the Court respectfully recommends that the City Defendants' Motion as to Nnebe's Section 1983 Claims against the City and DOE be GRANTED and those claims be DISMISSED WITHOUT PREJUDICE.
H. NYSHRL and NYCHRL Claims Against Werner
Werner argues Nnebe's NYSHRL and NYCHRL Claims fail because she “does not allege that Defendant Werner had authority to make personnel decisions and or had supervisory authority over [her], because he does not.” (ECF No. 26 at 13). In her Opposition, Nnebe argues that “both the NYSHRL and NYCHRL provide for aider-and-abettor liability[,]” and that her claims against Werner “should not be dismissed” because he was involved in certain “discriminatory acts[,]” and specifically 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. 37 at 30-32 (citing ECF No. 1 at 9-10, ¶¶ 15, 16, 21)).
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 [under these statutes], a plaintiff must allege that the defendant ‘actually participate[d] in the conduct giving rise to [the] discrimination claim.'” Sanchez, 2022 WL 1556402, at *5 (citing Feingold, 366 F.3d at 157). “A precondition to a valid aiding and abetting claim under the NYSHRL or NYCHRL is a demonstration of a valid primary claim for [hostile work environment,] discrimination[,] or retaliation.” Rossbach v. Montefiore Med. Ctr., No. 19 Civ. 5758 (DLC), 2021 WL 930710, at *7 (S.D.N.Y. Mar. 11, 2021). Where a plaintiff “does not state a claim for [] discrimination[, retaliation,] or a hostile work environment on the part of any defendant, there is no predicate for aiding and abetting liability with respect to these claims.” Farmer v. Shake Shack Enterprises, LLC, 473 F.Supp.3d 309, 338 (S.D.N.Y. 2020).
Here, Werner cannot be liable as an aider and abettor under either the NYSHRL or NYCHRL because, as discussed above, (see §§ III.D-F, supra), Nnebe has failed to plausibly allege an underlying violation of these statutes. See Butts v. N.Y.C. Dep't of Educ., No. 16 Civ. 5504 (NGG) (RML), 2018 WL 4725263, at *16 (E.D.N.Y. Sept. 28, 2018) (“Because Plaintiff has not established an underlying violation of any anti-discrimination law, her claim against [her union representative] for aiding and abetting discrimination fails.”); Aiossa v. Bank of Am., N.A., No. 10 Civ. 1275 (JS) (ETB), 2012 WL 4344183, at *5 (E.D.N.Y. Sept. 21, 2012) (“As Plaintiff has not established an underlying violation of the NYSHRL or the NYCHRL, her aiding and abetting claims against [the individual defendants] also fail.”), aff'd, 538 Fed.Appx. 8 (2d Cir. 2013).
Accordingly, the Court finds that Nnebe has failed to plausibly any claim under the NYSHRL and NYCHRL against Werner. Having determined that Nnebe's Federal Claims against Werner, i.e., her Title VII and ADEA Claims, fail as a matter of law, (see § III.B, supra),the Court respectfully recommends that Werner's Motion to dismiss the Complaint for failure to state a claim be GRANTED.
To the extent Nnebe intended to assert claims against Werner under Section 1983, she has failed to state such a claim. “Labor representatives such as [Werner] are generally not considered state actors and [Nnebe] does not argue otherwise.” Peres v. Oceanside Union Free Sch. Dist., 426 F.Supp.2d 15, 24 (E.D.N.Y. 2006) (citing Ciambriello v. Cnty of Nassau, 292 F.3d 307, 323 (2d Cir.2002). And while private actors may face liability under Section 1983 where they conspire with state actors to commit an unconstitutional act, Nnebe has not plausibly alleged such a conspiracy. See Berliner v. Port Auth. of NY & NJ, No. 08 Civ. 3152 (BMC), 2008 WL 11434516, at *4 (E.D.N.Y. Nov. 17, 2008) (“To state a plausible [Section] 1983 conspiracy claim, a complaint must make more than merely conclusory allegations; it ‘must allege facts demonstrating that the private entity acted in concert with the state actor to commit an unconstitutional act.'”) (quoting Ciambriello, 292 F.3d at 324). Indeed, having failed to allege an underlying constitutional violation, (see, §§ III.D-F, supra), any conspiracy claim would fail as a matter of law. See Bertuglia v. City of New York, 839 F.Supp.2d 703, 728 (S.D.N.Y. 2012) (“[A]bsent an underlying constitutional violation on which to base a [Section] 1983 conspiracy claim, a plaintiff's conspiracy claim fails as a matter of law.”).
Werner also argues that “[t]o the extent that this Court may construe [Nnebe]'s allegations to be a claim against Defendant Werner for a breach of the duty of fair representation, it is settled law that federal courts do not have jurisdiction over duty of fair representation claims brought by public employees against their unions.” (ECF No. 26 at 13 (citing Ford v. D.C. 37 Union Loc. 1541, 579 F.3d 187 (2d Cir. 2009)). Nnebe, however, “did not bring such a claim against [Werner]; she brought an [] aiding-and-abetting claim” under the NYSHRL and NYCHRL. Butts, 2018 WL 4725263, at *16 (declining to dismiss DOE paraprofessional's discrimination and retaliation claims against union representative on jurisdictional grounds where the union representative did “not explain why, or cite any authority indicating, that a federal court should treat a claim styled as arising under the NYCHRL as a duty of fair representation claim over which the court lacks jurisdiction”). Accordingly, Werner's “jurisdictional argument is unpersuasive” and misplaced. (Id.)
I. Leave to Amend
Nnebe requests “leave to file an amended complaint to address any deficiencies identified by the Court.” (ECF No. 37 at 8).
“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)); see Bloomberg v. N.Y.C. Dep't of Educ., 410 F.Supp.3d 608, 628 (S.D.N.Y. 2019) (permitting amended complaint after granting motion to dismiss). The Second Circuit recognizes that “the ‘liberal spirit' of the Federal Rule of Civil Procedure 15 embodies a ‘strong preference for resolving disputes on the merits.'” Davis v. Goodwill Indus. of Greater N.Y. & N.J., Inc., No. 15 Civ. 7710 (ER), 2017 WL 1194686, at *14 (S.D.N.Y. Mar. 30, 2017) (quoting Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190-91 (2d Cir. 2015)).
“District courts ‘ha[ve] broad discretion in determining whether to grant leave to amend[.]"' Trujillo, 2016 WL 10703308, at *21 (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).
Given Nnebe's pro se status, the Court respectfully recommends that her Request for leave to amend be GRANTED as those claims the Court has found were inadequately pled, i.e., her Title VII and ADEA Discrimination, Retaliation, and HWE Claims against the City and DOE, her Section 1983, NYSHRL, and NYCHRL Discrimination, Retaliation, and HWE Claims against the City Defendants, and her NYSHRL and NYCHRL aider-and-abettor claims against Werner. The Court respectfully recommends that leave to amend be DENIED, however, as to the claims that do not permit individual liability, i.e., her Title VII and ADEA Claims against Barry-Grant, Olivo, and Werner. As to the latter, “[t]he defects in these 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)). Therefore, amendment of these claims would be futile.
IV. CONCLUSION
For the reasons set forth above, the Court respectfully recommends that:
1. Defendants' Motions be GRANTED as follows:
a. Nnebe's Title VII and ADEA Claims against Barry-Grant, Olivo, and Werner be DISMISSED WITH PREJUDICE;
b. Nnebe's Title VII and ADEA Discrimination, Retaliation, and HWE Claims against the City and DOE, her Section 1983, NYSHRL, and NYCHRL Discrimination, Retaliation, and HWE Claims against the City Defendants, and her NYSHRL and NYCHRL aider-and-abettor claims against Werner be DISMISSED WITHOUT PREJUDICE; and
2. Nnebe's Request be GRANTED IN PART and DENIED IN PART, and that she be granted leave to amend her Title VII and ADEA Discrimination, Retaliation and HWE Claims against the City and DOE, her Section 1983, NYSHRL, and NYCHRL Discrimination, Retaliation, and HWE Claims against the City Defendants, and her NYSHRL and NYCHRL aider-and-abettor claims against Werner.
Defendants shall serve a copy of this Report and Recommendation on Nnebe by January 31, 2023, and file proof of service by.
The Clerk of Court is respectfully to mail a copy of this Report and Recommendation to Nnebe.