Opinion
Index No. 158073/2020 004
07-08-2022
OMAR ULFFE, Plaintiff, v. THE CITY OF NEW YORK, THE BOARD/DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, JAQUELINE ROSADO, MARK TURCOTTE, ASIA BURNETT, Defendant.
Unpublished Opinion
MOTION DATE 02/22/2022
DECISION + ORDER ON MOTION
HON. LESLIE STROTH JUSTICE
The following e-filed documents, listed,by NYSCEF document number (Motion 004) 48, 49, 50, 51, 52, 53, 54, 55, 56 were read on this motion to/for DISMISSAL.
Plaintiff Omar Ulffe (plaintiff), a former teacher employed by defendant Department of Education of the City of New York (defendant or DOE), brings this action pursuant to New York State Executive Law § 296 et seq. (New York State Human Rights Law or SHRL) and Administrative Code of City of NY § 8-101 et seq. (New York City Human Rights Law or CHRL) claiming unlawful age discrimination. Plaintiff further alleges a claim of unlawful retaliation, in' violation of Social Services Law (SSL) § 413 (1) (a), (b), (c), and CHRL and SSL § 413(2).
Defendant moves to dismiss plaintiffs amended complaint. For the reasons set forth below, plaintiffs age discrimination claims under the SHRL and CHRL are dismissed as untimely pursuant to Education Law .§ 3813(2-b). Further, plaintiffs retaliation claim pursuant to Social Services Law § 413 is dismissed, because no private right of action exists to obtain money damages under such provision. However, as Defendant did not move to dismiss Plaintiffs retaliation claim pursuant to CHRL, and the Court does not address that cause of action.
I. Alleged Facts
As alleged in the amended complaint, plaintiff worked at Junior High School 098X Herman Ridder School (JHS 98) as a probationary math teacher from September 4, 2016 to June 24, 2019. Prior to that he worked at the school as a substitute teacher from 2012-2013. Between May 2018 and March 2019, plaintiff brought to the attention of JHS 98's Assistant Principal Asia Burnett (Burnett) that an immigrant student did not receive an appropriate class placement from the school and that he believed the school misled the parents. Plaintiff further complained that other students did not receive mandated educational services from the school that they were entitled to receive. In April 2018, following his initial complaints, school officials informed plaintiff that he must sign a form that extended his probationary period. In March 2019, plaintiff also submitted written complaints to the assistant principal that documented violence and threats of violence between students, as well as threats of violence by students and a parent against him.
Had the probationary period not been extended, plaintiff could have reached tenure in June 2019.
Plaintiff subsequently claims that due to his age, and in retaliation for the complaints, the DOE created a hostile work environment. Specifically, plaintiff asserts that between April 9, 2019 and April 18, 2019, Burton, the assistant principal, improperly conducted an investigation of a complaint lodged by a student against plaintiff. He asserts in his amended complaint that Burton inappropriately interviewed students collectively, rather than separately, in violation of school chancellor regulations and the teachers' collective bargaining agreement. Plaintiff further claims that the assistant principal improperly elevated the disciplinary finding against him from "poor judgment" to "verbal abuse of a student," without substantiation. As a result of such charge, the DOE placed two disciplinary letters in Plaintiff s employee file.
On April 18, 2019, plaintiff unsuccessfully appealed the finding of "verbal abuse of a student." Plaintiff alleged in his amended complaint that on May 3, 2019, the school principal told plaintiff that, "you're too old to be a teacher." (Amended Complaint, Redline, NYSCEF doc 46 at ¶ 39). On June 24, 2019, the school superintendent terminated plaintiffs employment with the DOE. During the Summer of 2019, plaintiff reapplied to the DOE for employment and was nominated for three positions with the DOE. However, the DOE's Office of Personnel Investigations notified plaintiff that because he was terminated during his probationary period, he had been placed on a so-called "No Hire" list. (Amended Complaint, Redline, NYSCEF doc 46 at ¶ 2). Plaintiff therefore could not qualify to work in any of the positions that he applied for at the DOE during Summer 2019.
The DOE held a hearing regarding the termination of plaintiffs employment on January 31, 2020, but the Court has not received additional information as to the determination of the hearing.
II. Procedural History
Thereafter, plaintiff commenced this action by filing a summons and complaint on September 29, 2020. Plaintiff subsequently moved to amend his complaint. By decision and order dated November 10, 2021, Justice Lyle Frank granted plaintiffs motion to add the plaintiffs proposed first and fourth causes of action, which encompass the alleged age discrimination claims under state and city law and retaliation-based violations of Social Services Law § 413 and the CHRL. However, Justice Frank denied plaintiffs motion to add the proposed second (intentional infliction of emotional distress), third (stigma plus, defamation, and libel), fifth (abuse of process), and sixth (fraud) causes of action, for failure to state a claim. Justice Frank also denied plaintiffs motion as it requested to add any causes of action against the individual defendants, holding that the time to serve them expired and .that plaintiff did not provide a reasonable excuse for such failure.
Justice Frank directed plaintiff to upload to NYSCEF its original complaint with the proposed amended complaint, with the approved amendments "redlined." Plaintiff uploaded a redlined complaint (see NYSCEF doc. 46), which did not comply with Justice Frank's decision. The "redlined" amended complaint included amendments to the second, third, fifth and sixth causes of action, which were not permitted by Justice Frank and all of which he deemed to fail to state a claim. Despite plaintiffs' failure to adhere to Justice Frank's order, this Court deems the amended complaint filed and served only as to the first and fourth causes of action against the DOE. The remaining claims and defendants included in the amended complaint do hot conform to Justice Frank's directives and are therefore rejected.
"Redlined" means that all changes made to a document are emphasized.
III. Analysis
CPLR 3211 provides that a party may move to. dismiss'where, inter alia,-a cause of action may not be maintained because of the statute of limitations or that that the pleading fails to state a cause of action. CPLR 3211 (a) (5), (7). On a motion to dismiss pursuant to CPLR-3211, the pleading is to be afforded a liberal construction. Leon v Martinez, 84 N.Y.2d 83, 87 (1994). When considering a motion to dismiss, the Court must review, ".. .whether the facts as alleged fit within . any cognizable legal theory." Id. at 88.
a. Plaintiffs Age Discrimination Claim Are Time-Barred
Claims against the DOE are governed by a one-year statute of limitations. See Education Law § 3813(2-b), see also Campbell v NYC Dept of Educ, 200 A.D.3d 488, 488 (1st Dept 2021) ("Plaintiffs claims against trie Department of Education are time-barred under the one-year statute of limitations applicable to all claims against school districts and other specified entities"). Although plaintiff argues in opposition that claims pursuant to the SHRL and CHRL have a three-year statute of limitations against the DOE, plaintiff does not cite to any statute that so provides, nor does he provide any applicable case law to support his assertions.
Plaintiffs SHRL and CHRL claims accrued on June 24, 2019, the date that the DOE notified plaintiff that his employment was terminated. Id. at 488, citing Matter of Kahn v New York City Dept. of Educ, 18 N.Y.3d 457, 467 (2012) (holding that the plaintiffs discrimination claims against the DOE were time-barred, because the plaintiff failed to commence the action within one year of her termination). Plaintiffs grievance of his employment termination does not toll the statute of limitations. See Pinder v City of NY, 49 A.D.3d 280, 281 (1st Dept 2008) (",..an' employment discrimination claim accrues on the date that an adverse employment determination is made and communicated to plaintiff, and the possibility that the determination may be reversed is insufficient to toll the limitations period" [citing Cordone v Wilens & Baker, P.C., 286 A.D.2d 597, 598 (1st Dept 2001)]).
Plaintiff commenced this action on September 20, 2020, over one year after June 24, 2019, the date that the cause of action accrued. As such, Plaintiffs age discrimination claims under SHRL and CHRL against the DOE are time-barred. See Campbell, 200 A.D.3d at 488; Pinder, 49 A.D.3d at 281; Stembridge v NYC Dept of Educ, 88 A.D.3d 611,611 (1st Dept 2011); Laboy v City of NY, 159 A.D.3d 632, 633 (1st Dept 2018). Therefore, plaintiffs SHRL and CHRL age discrimination claims are dismissed as untimely.
b. Plaintiff Fails to State a Cause of Action for Retaliation Pursuant to SSL § 413
Plaintiff alleges that the DOE unlawfully retaliated against him in violation of Social Services Law § 413 for reporting student on student violence, threats of violence, errors in a student's class placement, and lack of mandated educational services. Defendant moves to dismiss plaintiffs retaliation claim under Social Services Law § 413 on the grounds that the statute does not grant Plaintiff a private right of action for money damages. In opposition, plaintiffs attorney merely cites to the Social Services Law and affirms that, "Plaintiff has a private right of action," without any case law or analysis.
Social Services Law § 413(1)(c) provides in relevant part that:
[A school] shall not take any retaliatory personnel action, as such term is defined in paragraph (e) of subdivision one of section seven hundred forty of the labor law, against an employee because such employee believes that he or she has reasonable cause to suspect that a child is an abused or maltreated child and that employee therefore makes a report in accordance with this title.
The statute does not create a private right of action for money damages, and it does not specify the enforcement mechanism for an employee whose employer unlawfully retaliates against them in violation of the statute. See generally Social Services Law § 413.
Moreover, numerous courts have held that that no implied private right of action exists under Title 6 of the Social Services law or, specifically, Social Services Law § 413. See Mark G v Sabol, 93 N.Y.2d 710, 719 (1999); Rivera v Cty of Westchester, 31 Misc.3d 985, 991 (Sup Ct, Westchester County 2011 Giacamo, J.); Lomonoco v Anne, 2016 WL 4402029, *6 (ND NY, Aug. 18,2016,No. 1:15 CV 1163 [GTS/CFH]). After reviewing the legislative history of Article 6, Title 6, the Court of Appeals has held that:
The Legislature specifically concentrated on the statutory scheme's enforcement provisions, which, except for the unique motivations that underlie Social Services Law § 420, have never included private rights of action for money damages. In sum, we conclude that a private right of action for money damages cannot be fairly implied from title 6 of the Social Services Law. Mark G v Sabol, 93 N.Y.2d 710, 722(1999). In fact, the First Department has enforced complaints of retaliation in violation of Social Services Law § 413 under Labor Law § 740 (the Whistleblower Law). See Villarin v Rabbi Haskel Lookstein School, 96 A.D.3d 1, 7 (1st Dept 2012). Notably, the redlined amended complaint removes all references to Labor Law § 740, the appropriate enforcement mechanism to pursue a
cause of action under Social Services Law § 413. Therefore, Plaintiffs claim for retaliation pursuant to Social Services Law § 413 is dismissed, as it fails to state a cause of action under any cognizable legal theory.
c. Plaintiff Claim for Retaliation Pursuant to CHRL Survives
In addition to his retaliation claim pursuant to Social Services Law, plaintiff pleads that DOE retaliated against him in violation of the CHRL. DOE exclusively moves to dismiss plaintiffs retaliation claims under Social Services Law § 413. DOE fails to address the substance of plaintiffs retaliation claims pursuant to the CHRL. Therefore, the Court does not address such claim.
IV. Conclusion
The Court has considered the parties' remaining contentions and find them to be unavailing. Accordingly, it is
ORDERED that plaintiffs amended complaint (NYSCEF doc. 45) is deemed filed and served as to the first and fourth causes of action against the DOE only, and it is further
ORDERED that the action shall bear the following caption:
OMAR ULFFE, Plaintiff, -against
THE BOARD/DEPARTMENT OF EDUCATION OF THE CITY OF NEW YORK, Defendant and it is further
ORDERED that plaintiff's first cause of action for age discrimination is dismissed as is beyond the statute of limitations, and it is further
ORDERED plaintiffs fourth of action is dismissed only as to his claims pursuant to Social Services Law § 413, and it is further
ORDERED that counsel are directed to appear for a status conference to be held via Microsoft Teams on September 14, 2022 at 4:00 p.m. regarding plaintiffs remaining claim.
The foregoing constitutes the Decision and Order of the Court.
The Court would like to thank.Sabrina ML Tann, Esq. for her assistance in this matter.