Opinion
19-CV-11219 (PGG) (JLC)
02-15-2023
AKEEM OLIVER, Plaintiff, v. CITY OF NEW YORK, DERMOT F. SHEA in his official capacity as Commissioner of the New York City Police Department, JOHN L. O'CONNELL in his official capacity as Commanding Officer of the Ninth Precinct of the New York City Police Department, JOSEP GONZALEZ in his personal and official capacity as a Sergeant of the New York City Police Department, KENNETH J. TAYLOR in his personal and official capacity as an Officer of the New York City Police Department, FIVE UNKNOWN OFFICERS OF THE NEW YORK CITY POLICE DEPARTMENT in their personal and official capacities, BOARD OF EDUCATION OF THE CITY SCHOOL DISTRICT OF THE CITY OF NEW YORK, TOMPKINS SQUARE MIDDLE SCHOOL, CARRY CHAN in her official capacity as Superintendent of School District 1, KRISTINE MUSTILLO in her personal and official capacity as Deputy Community Superintendent of School District 1 and SONHANDO ESTWICK in his personal and official capacity as principal of Tompkins Square Middle School, Defendants.
Honorable Paul G. Gardephe, United States District Judge
REPORT AND RECOMMENDATION
JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE.
Table of Contents
I.BACKGROUND ……………………………………………………………….. 2
A. Factual Background ………………………………………………………… 2
1.Parties to the Case …………………………………………………………. 2
2.Oliver's Experiences at TSMS prior to March 2019 …………………... 3
3.NYPD's Arrest of Oliver at TSMS on March 22, 2019 …………………7
4.Oliver's Experiences Following the Arrest ………………………………10
B.Procedural History ………………………………………………………….. 14
II.DISCUSSION………………………………………………………………...… 17
A.Applicable Legal Standards ………………………………………………. 17
1.Motion to Dismiss Pursuant to Rule 12(b)(6) …………………………... 17
2.Qualified Immunity ………………………………………………………… 18
3.Municipal Liability …………………………………………………………. 20
B.Timeliness of Plaintiff's Claims …………………………………………. 21
C.Analysis of Claims Against the NYPD Defendants ………………… 22
1.Probable Cause …………………………………………………………….. 23
a.Legal Standard ……………………………………………………… 23
b.Application ……………………………………………………..……. 24
2.Qualified Immunity ………………………………………………….……. 28
a.Legal Standard ……………………………………………………… 29
b.Application ……………………………………………………..……. 31
3.State Law Claims ……………………………………………………..…... 32
4.Derivative Claims …………………………………………………….……. 33
a.Supervisory Liability of Shea, O'Connell, Gonzalez ………… 34
b.Respondeat Superior Liability of the City ……………………... 36
c.Municipal Liability …………………………………………………. 37
5.Summary of Claims Against the NYPD Defendants…………….…..... 39
D. Analysis of Claims Against the DOE Defendants …………………... 40
1.Discrimination ……………………………………………………………… 42
a.Legal Standards ……………………………………………………. 42
b.Race Discrimination ……………………………………………..… 44
i.Adverse Employment Action ………………………..….… 45
ii.Inference of Discrimination ………………………………. 48
c.Hostile Work Environment ……………………………….………. 51
i.Legal Standards …………………………..………………... 52
ii.Application …………………………………….………….…. 53
d.Discrimination Under the NYCHRL …………………………….. 56
2.Retaliation …………………………………………………………………... 57
a.Legal Standard …………………………………………………...…. 58
b.Application …………………………………………………..……… 59
i.Protected Activity ……………………………………..……. 59
ii.Adverse Employment Action ………………………...……. 62
iii.Causal Connection ……………………………………….…. 64
c.Retaliation Under the NYCHRL …………………………………. 66
3.Personal Involvement of Individual Defendants ………………………. 67
4.Derivative Claims ……………………………………………………..……. 71
a.Supervisory Liability and Respondeat Superior ……………….. 71
b.Municipal Liability ……………………….…………………..……. 72
5.Summary of Claims Against the DOE Defendants ……………………..75
III.CONCLUSION …………………………………….……………………..……. 76
Akeem Oliver, a teacher at Tompkins Square Middle School in Manhattan, brings this action against the City of New York, four named and five unknown officers of the New York City Police Department, the Board of Education of the City School District of the City of New York, Tompkins Square Middle School and its principal, and two individual employees of the Board of Education. As against the NYPD Defendants and the City of New York, Oliver brings claims of false arrest and discrimination under the United States Constitution, 42 U.S.C. § 1983, and the New York State Constitution. As against the Department of Education Defendants and the City of New York, Oliver brings claims of race discrimination, hostile work environment, and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1983, the New York State Human Rights Law, and the New York City Human Rights Law. Oliver brings a total of 22 claims against the Defendants, all arising from events surrounding his arrest and subsequent investigation in March 2019.
Defendants have moved to dismiss Oliver's complaint in its entirety pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend the motion be granted in part and denied in part.
I. BACKGROUND
A. Factual Background
The following facts are taken from Oliver's Second Amended Complaint (“SAC”), Dkt. No. 41, and are accepted as true for purposes of the pending motion. See, e.g., Smolen v. Wesley, No. 16-CV-2417 (KMK), 2019 WL 4727311, at *4 (S.D.N.Y. Sept. 25, 2019) (citing Erickson v. Pardus, 551 U.S. 89, 94 (2007)).
1. Parties to the Case
Oliver is a Black male special needs teacher at Tompkins Square Middle School (“TSMS”) in New York City. SAC ¶¶ 1, 44-45. He has been an educator employed by Defendant Board of Education of the City School District of New York for 12 years, holds a master's degree in special education, and has participated in “numerous trainings, courses, or certifications” relevant to his job. SAC ¶ 44.
Oliver has brought suit against the following:
• The City of New York (“City”);
• The “NYPD Defendants,” including:
o Dermot F. Shea, Commissioner of the New York City Police Department (in his official capacity) (“Shea”);
o John L. O'Connell, Commanding Officer of the Ninth Precinct of the New York City Police Department (in his official capacity) (“O'Connell”);
o Josep Gonzalez, a sergeant of the New York City Police Department (in his personal and official capacities) (“Gonzalez”);
o Kenneth J. Taylor, an officer of the New York City Police Department (in his personal and official capacities) (“Taylor”);
o Five Unknown Officers of the New York City Police Department (in their personal and official capacities) (“Unknown Officers”); and
• The “DOE Defendants,” including:
o Board of Education of the City School District of the City of New York (“Department of Education” or “DOE”);
o Tompkins Square Middle School (“TSMS”);
o Carry Chan, Superintendent of School District 1 (in her official capacity) (“Chan”);
o Kristine Mustillo, Deputy Community Superintendent of School District 1 (in her personal and official capacities) (“Mustillo”); and
o Sonhando Estwick, TSMS' Principal (in his personal and official capacities) (“Estwick”).
2. Oliver's Experiences at TSMS prior to March 2019
Oliver alleges that for seven years, he “endured” a “series of attacks and vicious false rumors on his character, professional reputation, and standing as a teacher” at TSMS. SAC ¶ 2. Oliver alleges that Estwick and other DOE employees “spread rumors and false accusations about [him],” which “spread throughout the TSMS community, including to TSMS students and parents.” SAC ¶ 6.
As described in the Second Amended Complaint, the alleged series of attacks and false rumors prior to the incident giving rise to this action include the following:
• In early 2012, Oliver asked Estwick during a staff meeting whether Black History month was celebrated at TSMS. SAC ¶ 50. Estwick responded that TSMS “had no plans to do anything” in recognition, and later that day he “complained” about Oliver's question by “making disparaging remarks” to him, including calling him an “affirmative action hire,” informing him that his “radical views were not welcome at the school,” and stating that he wanted Oliver to leave TSMS. SAC ¶¶ 50-51.
• Estwick and DOE disseminated, facilitated, and/or condoned “fabricated rumors” that Oliver “harbored ‘predatory' intentions toward TSMS students consistent with the racial stereotyping of Black men as predators.” SAC ¶ 57. Specifically, Estwick issued disciplinary letters to him “riddled with false statements.” SAC ¶ 56. On November 14, 2012, Estwick addressed a “Counseling Letter” to Oliver's file in which he expressed “purported ‘concerns about the personal nature of [Oliver's] interactions with some of [his] students'” and “expressed Defendant Estwick's ‘belief' that ‘some of' Mr. Oliver's interactions with students ‘dealt with personal matters such as peer and family relationships.'” SAC ¶ 58. The letter “did not cite any specific interactions” that Estwick believed were inappropriate, and stated that “nothing ha[d] led [Defendant Estwick] to believe that there have been any improper physical relations with students.” SAC ¶ 58.
• Estwick prevented Oliver from serving in after-school coaching capacities without reason. SAC ¶ 52.
• Estwick gave Oliver a negative teaching evaluation for the 2013-2014 school year. SAC ¶ 52.
• In or around January 2017, a TSMS teacher told a student exhibiting signs of depression and abuse, T.S., that he was “concerned” about Oliver's relationship with T.S. and to stop reaching out to him. SAC ¶¶ 59-60.
• On or around January 18, 2017, TSMS's then-guidance counselor “falsely told a foster care agency worker that . . . Oliver harbored ‘predatory' intentions” toward T.S. and suggested that Oliver had made “improper advances” toward T.S. SAC ¶ 61.
• Oliver “repeatedly” asked for Estwick's help to dispel rumors, but Estwick refused and defended the other employees responsible for spreading them. SAC ¶ 63.
• On April 7, 2017, Oliver and a union representative met with Estwick, during which time Estwick “stated that he did not believe . . . Oliver had an inappropriate relationship” with T.S. but “abdicated” responsibility, adding that he could not control what others said. SAC ¶ 63.
• Estwick reassigned Oliver to “the Rubber Room” between April 19 and September 25, 2017 during an investigation into his conduct related to an inappropriate relationship with T.S. SAC ¶¶ 56, 65, 67.
• Prior to his reassignment, Oliver earned additional income from participating in per session activities as part of TSMS's after-school program, including coaching the girls' basketball team and the co-ed volleyball team and performing homework help. SAC ¶ 66. While reassigned to the Rubber Room, Oliver was unable to participate in per session activities and teach Summer School, resulting in a loss of additional income that he would have received and on which he relied. SAC ¶ 65.
• While reassigned to the Rubber Room, Oliver was “treated poorly” by DOE staff and “forced” to complete secretarial tasks, including working on one occasion in the mail room. SAC ¶ 68.
As described in the Second Amended Complaint, “[t]he Rubber Room is a room where teachers under investigation due to allegations of wrongdoing-regardless of whether these allegations are substantiated-must report and simply sit and idle away the hours while they anxiously await a conclusion to the investigation as to whether they have done anything wrong. No timetable is provided for how long teachers assigned to the Rubber Room will need to nervously and mindlessly idle there. Reassignment to the Rubber Room is viewed as a punishment; thus, teachers reassigned to the Rubber Room face the stigma of wrongdoing, even if they ultimately are exonerated.” SAC ¶ 3.
As described in the Second Amended Complaint, Oliver is alleged to have previously taken the following legal actions challenging his treatment at TSMS:
• In 2014, Oliver brought an arbitration proceeding against Estwick seeking to overturn a negative teaching evaluation, allegedly resulting from Estwick's “negative attitude towards . . . Oliver because [he] was a Black man” (“Arbitration Proceeding”). SAC ¶ 5. Oliver prevailed at the proceeding, but Estwick “apparently faced no disciplinary action” from the DOE. SAC ¶¶ 5354.
• In 2014, Oliver filed a complaint against Estwick with the DOE Office of Equal Opportunity for racial discrimination in the workplace (“OEO Complaint”). SAC ¶ 5. After some initial interaction between Oliver and the OEO in 2015, the OEO took no action of which Oliver is aware from December 2015 until April 2018, at which point the OEO closed its investigation. SAC ¶ 55.
• In 2017, Oliver filed an action for “employment and related complaints” (“Previous Action”). SAC ¶ 5. This action settled on December 27, 2018. SAC ¶ 69. During the action's pendency, Oliver continued to teach at TSMS but described the situation as “very uncomfortable.” SAC ¶ 70.
• In 2018, Oliver filed a complaint with the U.S. Equal Employment Opportunity Commission against Estwick and others (“2018 EEOC Complaint”). SAC ¶ 69.
3. NYPD's Arrest of Oliver at TSMS on March 22, 2019
On March 21, 2019, a TSMS student, G.C., reported to Estwick and TSMS Guidance Counselor Paola Melendez that “at some point” Oliver “caressed G.C.'s arm” and “said something to G.C. along the lines of ‘I know you love me, or you know you love me,' which purportedly made her uncomfortable.” (“Alleged Incident”). SAC ¶ 73. Oliver claims that “upon information and belief, rather than speaking to [him] directly about G.C.'s account or speaking to other students who would have been present in the classroom during the Alleged Incident,” Estwick and other DOE employees “immediately [reported] the Alleged Incident to G.C.'s parents and/or the NYPD, encouraging G.C. and her parents to report the Alleged Incident to the NYPD, and/or by encouraging the NYPD to arrest [him] without first undertaking any investigation of the Alleged Incident.” SAC ¶ 76.
The next morning, March 22, 2019, “Estwick interrupted Oliver's classroom lesson and removed him from the classroom under the false pretense that [Chan] wanted to see [him].” SAC ¶ 79. Estwick then led Oliver to the TSMS entrance where six NYPD Arresting Officers were waiting for him. SAC ¶ 79. These included Taylor and the Five Unknown NYPD Officers. SAC ¶ 8. Upon arriving at the entrance, Estwick said to the Arresting Officers, “Here he is.” SAC ¶ 79. The Arresting Officers “told Mr. Oliver that he was under arrest” and “immediately thrust Mr. Oliver's body into the wall of the building.” SAC ¶ 80. They “forced Mr. Oliver's hands behind his back, handcuffed him, and conducted a pat down search of him, all in public.” SAC ¶ 80.
Oliver is “uncertain” whether the Five Unknown NYPD Officers included Gonzalez. Id. To date, despite ongoing discovery, Oliver has not amended his complaint further to identify these officers.
None of the Arresting Officers informed Oliver why he was under arrest. SAC ¶ 81. The Arresting Officers led Oliver on a “perp walk” through a “large group of TSMS parents, staff, and students.” SAC ¶ 83. Once he was seated in the back of a police car, one of the officers informed Oliver that he was being charged with “endangering a child.” SAC ¶ 84. Oliver alleges that up to this point, the NYPD had not investigated the incident and did not have any evidence that he posed an immediate threat. SAC ¶¶ 78, 85.
After his arrest, the officers took Oliver to the Ninth Precinct for processing, where they detained him in a cell for approximately three and a half hours. SAC ¶¶ 86, 89. The NYPD arrest report, which Officer Taylor allegedly authored, “states that the only information purportedly supporting [his] arrest was a child's allegation ‘that her teacher rubbed on her arm and stated “I know that you love me” w/o permission or authority to do so.'” SAC ¶ 92. Sergeant Gonzalez is alleged to have “approv[ed]” Oliver's arrest for violating New York Penal Law Section 260.10 (Endangering the Welfare of a Child). SAC ¶ 93.
The NYPD released Oliver that same afternoon. SAC ¶ 97. According to Oliver, one of the unknown Arresting Officers told him that the NYPD had been holding him “while it completed its investigation of the Alleged Incident,” and that they had spoken to two students “identified as witnesses” and that neither corroborated G.C.'s account. SAC ¶ 97. Another Officer allegedly said to Oliver that, “given the allegations at issue, the NYPD's arrest of [Oliver] was ‘unusual,' and that similar cases were not ‘typically' handled in the same way.” SAC ¶ 98.
At the Ninth Precinct, the Officers allegedly did not provide Oliver with the opportunity to call anyone, nor had anyone from TSMS called Oliver's emergency contacts to inform them of his arrest. SAC ¶ 89. While being processed, Oliver alleges that he observed one of the Arresting Officers pull out a “drop gun,” which he understood to be a gun of a different make and caliber than the ones that officers carried in their holsters, purportedly used to falsely allege that suspects were armed as a self-defense argument when police officers killed suspects. SAC ¶¶ 86-87. Oliver claims that upon seeing the gun, he feared he might be similarly harmed. SAC ¶ 87. Officers allegedly handcuffed Oliver until the time he was placed in a cell, and as a result of the handcuffs being too tight, he contends that he suffered an indentation and redness on his wrists. SAC ¶ 88.
4. Oliver's Experiences Following the Arrest
Oliver returned to TSMS that same day after being released from police custody. SAC ¶ 108. Oliver alleges that he was “refused entrance into a faculty meeting about his arrest and immediately escorted out of his classroom by school safety officers.” SAC ¶ 108. Estwick then met with Oliver, at which time Estwick allegedly told him that the arrest had been the result of his “very negative reputation.” SAC ¶ 108. Estwick handed him a Reassignment Letter from the DOE informing Oliver he was reassigned to the Rubber Room because the New York City Special Commissioner of Investigations had opened an investigation into him. SAC ¶¶ 108-09. Oliver also alleges that the letter stated that, due to his reassignment, he would be “unable to participate in per session activities and teach in Summer School,” resulting in a loss of additional income he “would have received and on which he relied.” SAC ¶ 109. Due to this reassignment, he allegedly was “unable to apply for additional teaching and coaching responsibilities” that would have provided additional income. SAC ¶ 115. Oliver also alleges he was “ineligible to a seek a transfer to another school once he left the Rubber Room” because he did not receive a performance rating for the 2018-2019 year due to this reassignment. SAC ¶ 116.
Estwick allegedly sent an email to TSMS parents informing them that Oliver “ha[d] been reassigned away from the school pending the results of an investigation.” SAC ¶ 112. Oliver contends that “[e]mails broadcasting a teacher's reassignment to the Rubber Room are not common and unnecessary.” SAC ¶ 113. On approximately June 6, 2019, Oliver received a letter from the DOE which authorized him to return to his position at TSMS; he resumed teaching there on June 10, 2019. SAC ¶¶ 118-19. Upon his return, Estwick purportedly “apologized” to Oliver for having “turned [him] over” to the police on March 22, saying he “felt like [he] was walking [Oliver] to [his] death sentence.” SAC ¶ 119.
On June 7, 2019, Oliver received a letter from Deputy Community Superintendent Mustillo, requesting a meeting “to discuss an allegation of professional misconduct.” SAC ¶ 121. When they met on June 11, 2019, Mustillo gave Oliver a copy of an investigation report dated June 10, 2019, reflecting that the investigation into Oliver was referred by the OEO to the District 1 Office (the District in which TSMS is located in New York City public schools). SAC ¶ 122. Oliver alleges that the report was “littered with false statements” supposedly made by anonymous TSMS students against him, which Oliver denied to Mustillo. SAC ¶¶ 125-26. A DOE letter Oliver received on June 17, 2019, adopted the allegations in the investigation report and warned Oliver that the allegations “may lead to further disciplinary action, including charges that can lead to your termination.” SAC ¶ 131. Oliver claims the determination that these allegations against him were credible was due to a “racist view of Black men as predators” and “in retaliation” for the Previous Action. SAC ¶ 132. After attempting to apply for a hardship transfer to a different school, DOE staff allegedly told Oliver that he was not eligible because of this June 17 letter. SAC ¶ 133.
Oliver alleges that the DOE's treatment of him after the March 21, 2019 allegations by G.C. is in “stark contrast” to treatment of white TSMS teachers facing similar accusations. SAC ¶ 134. Specifically, Oliver identifies the following teachers and incidents in his second amended complaint:
• White Teacher No. 1 is a white male who “allegedly forcefully grabbed children by the arms” and “commented on at least one female student's skin and another student's weight.” SAC ¶ 136. This teacher once asked, in the presence of Oliver and other TSMS students, why he “always got the suicidal and depressed kids.” SAC ¶ 135. Oliver alleges a parent reported to Estwick around October 2016 that this teacher made “inappropriate and racially-charged remarks in the classroom, such as by referring to the ‘Muslim Ban' as the ‘[Muslim student's name] ban' in front of several other students.” SAC ¶¶ 135. Upon information and belief, “complaints were filed” about him with the DOE's Office of Special Investigations, and while the investigation was pending, “he was not removed to the Rubber Room or subjected to disciplinary action but instead continued teaching at TSMS.” SAC ¶ 137. As alleged, “White Teacher No. 1 and Mr. Oliver were co-teachers at Defendant TSMS (i.e., they taught classes together)” and “[l]ike Mr. Oliver, White
Teacher No. 1 was a tenured teacher who was supervised by Defendant Estwick and TSMS's Assistant Principal”. SAC ¶ 138.
• White Teacher No. 2 is a white male teacher at TSMS, whom Oliver claims G.C. alleged “inappropriately rubbed against her.” SAC ¶ 140. Oliver alleges G.C. subsequently complained to the school, requesting this teacher no longer serve as her advisor, but that TSMS “never conducted an investigation” or ever subjected him to disciplinary action. SAC ¶¶ 140-41. As alleged, White Teacher No. 2 was a teacher supervised by Estwick and TSMS's Assistant Principal. SAC ¶ 142.
• White Teacher No. 3 is a white male teacher at TSMS who allegedly “inappropriately touched” another student, making that student feel “uncomfortable.” SAC ¶ 144. Upon information and belief, he never faced any disciplinary action. SAC ¶ 144. As alleged, White Teacher No. 3 was a tenured teacher (and he and Oliver were previously co-teachers) supervised by Estwick and TSMS's Assistant Principal. SAC ¶ 145.
Oliver further contends that his treatment is similar to treatment of other Black teachers. SAC ¶ 149. To support that theory, he alleges that the DOE recently entered into settlements with the U.S. Attorney's Office for the Southern District of New York agreeing to pay more than one million dollars to resolve allegations of engaging in a pattern and practice of racial discrimination and retaliation in violation of Title VII. SAC ¶ 149.
As a result of his March 2019 arrest, assignment to the Rubber Room, and “continued humiliation,” Oliver claims to have “suffered severe emotional distress that has manifested itself in difficulty sleeping and other medical problems for which Mr. Oliver has sought treatment from medical professionals.” SAC ¶ 159.
B. Procedural History
Oliver commenced this action on December 6, 2019. Dkt. No. 1. On June 4, 2020, Oliver filed the First Amended Complaint, Dkt. No. 33, and on August 13, 2020, Oliver filed the Second Amended Complaint (“SAC”), Dkt. No. 41. In the Second Amended Complaint, Oliver brings the following 22 claims:
1. Arrest without Probable Cause under 42 U.S.C. § 1983 (“Section 1983” or “§ 1983”) and the United States Constitution against Shea, O'Connell, Gonzalez, Taylor, and the Five Unknown NYPD Officers (First Claim);
2. False Arrest against Shea, O'Connell, Gonzalez, Taylor, and the Five Unknown NYPD Officers (Second Claim);
3. Equal Protection Violation under the New York State Constitution against Shea, O'Connell, Gonzalez, Taylor, and the Five Unknown NYPD Officers (Fifth Claim);
4. Unreasonable Search, Seizure, and Interception Violation under the New York State Constitution against Shea, O'Connell, Gonzalez, Taylor, and the Five Unknown NYPD Officers (Sixth Claim);
5. Race Discrimination under Title VII against the DOE (Eighth Claim);
6. Hostile Work Environment under Title VII against the DOE (Ninth Claim);
7. Retaliation under Title VII against the DOE (Tenth Claim);
8. Race Discrimination under § 1983 against TSMS, Chan, Mustillo, and Estwick (Eleventh Claim);
9. Hostile Work Environment under § 1983 against TSMS, Chan, Mustillo, and Estwick (Twelfth Claim);
10. Retaliation under § 1983 against TSMS, Chan, Mustillo, and Estwick (Thirteenth Claim);
11. Race Discrimination under the New York State Human Rights Law (“NYSHRL”) against the DOE, TSMS, Chan, Mustillo, and Estwick (Sixteenth Claim);
12. Race Discrimination under the New York City Human Rights Law (“NYCHRL”) against the DOE, TSMS, Chan, Mustillo, and Estwick (Nineteenth Claim);
13. Hostile Work Environment under the NYSHRL against the DOE, TSMS, Chan, Mustillo, and Estwick (Seventeenth Claim);
14. Hostile Work Environment under the NYCHRL against the DOE, TSMS, Chan, Mustillo, and Estwick (Twentieth Claim);
15. Retaliation under the NYSHRL against the DOE, TSMS, Chan, Mustillo, and Estwick (Eighteenth Claim); and
16. Retaliation under the NYCHRL against the DOE, TSMS, Chan, Mustillo, and Estwick (Twenty-First Claim).
Oliver additionally asserts the following derivative claims:
17. Monell liability against the City of New York (for the actions of the NYPD) (Third Claim);
18. Monell liability against the DOE (for failure to supervise and discipline Estwick) (Fourteenth Claim);
19. Supervisory Liability against Shea, O'Connell, and Gonzalez (Fourth Claim);
20. Supervisory Liability against Chan and Mustillo (Fifteenth Claim);
21. Respondeat Superior liability against the City of New York (Seventh Claim); and
22. Respondeat Superior liability against the DOE (Twenty-Second Claim).
On November 11, 2020, Defendants moved to dismiss the Second Amended Complaint on the following grounds: (1) that it is time-barred; (2) it is barred by plaintiff's failure to comply with all conditions precedent to bringing suit; (3) it is barred by waiver and general release; (4) the individual Defendants are immune from suit based upon qualified immunity; and (5) the second amended complaint fails to state a claim for relief. Defendants' Memorandum of Law in Support of their Motion to Dismiss the Second Amended Complaint (“Def. Mem.”), Dkt. No. 63 at 5 (Date stamped February 4, 2021 on ECF). Oliver submitted his opposition to Defendants' motion on December 23, 2020, and Defendants submitted reply papers on February 4, 2021. Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss (“Pl. Opp. Mem.”), Dkt. No. 64; Defendants' Reply Memorandum of Law in Further Support of their Motion to Dismiss (“Def. Rep. Mem.”), Dkt. No. 65 (Both date stamped February 4, 2021 on ECF). On April 23, 2021, this case was referred to me for general pre-trial supervision and for a report and recommendation on the motion to dismiss. Dkt. No. 71.
Fact discovery is currently scheduled to be completed by April 15, 2022, and expert discovery by June 20, 2022. Dkt. No. 92.
The Court held an unsuccessful settlement conference in July 2021.
II. DISCUSSION
A. Applicable Legal Standards
1. Motion to Dismiss Pursuant to Rule 12(b)(6)
Under Rule 12(b)(6), a complaint may be dismissed for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a Rule 12(b)(6) motion, a plaintiff must plead facts in his complaint that “state a claim to relief that is plausible on its face” and that satisfy Rule 8(a)(2). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 8(a)(2) requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Id. (quoting Fed.R.Civ.P. 8(a)(2)). A claim is facially plausible when the plaintiff alleges facts sufficient to show “more than a sheer possibility that a defendant has acted unlawfully” and includes “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 663, 678 (citing Twombly, 550 U.S. at 556). This standard requires a plaintiff's pleadings to sufficiently “nudge[ ] [his] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570. Generally, “[s]pecific facts are not necessary; the statement need only ‘give the defendant fair notice of what the claim is and the grounds upon which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting Twombly, 550 U.S. at 555) (internal quotation marks omitted).
When considering a motion to dismiss, “all factual allegations in the complaint are accepted as true and all inferences are drawn in the plaintiff's favor.” Littlejohn v. City of New York, 795 F.3d 297, 306-07 (2d Cir. 2015) (citing Ofori-Tenkorang v. Am. Int'l Grp., Inc., 460 F.3d 296, 300 (2d Cir. 2006)). “A complaint need not include ‘detailed factual allegations,' but it must contain more than mere ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action.'” JCG v. Ercole, No. 11-CV-6844 (CM) (JLC), 2014 WL 1630815, at *5 (S.D.N.Y. Apr. 24, 2014) (quoting Iqbal, 556 U.S. at 678) (internal quotations omitted), adopted by 2014 WL 2769120 (June 18, 2014). A complaint containing only “conclusory allegations or legal conclusions masquerading as factual conclusions” will not survive a motion to dismiss. Womack v. Cap. Stack, LLC, No. 18-CV-4192 (ALC), 2019 WL 4142740, at *3 (S.D.N.Y. Aug. 30, 2019) (quoting Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011)). The Court must construe a complaint “liberally” to determine if it states a claim. Lawton v. Town of Orchard Park, No. 14-CV-867S (WMS), 2017 WL 3582473, at *4 (W.D.N.Y Aug. 18, 2017).
2. Qualified Immunity
In order to state a claim for relief under Section 1983, a plaintiff must plausibly allege that the conduct in question (1) was “committed by a person acting under color of state law,” and (2) “deprived [the plaintiff] of rights, privileges, or immunities secured by the Constitution or laws of the United States.” 42 U.S.C. § 1983; Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010) (citations omitted). Section 1983 is intended to “deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights and to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992).
A government official may be entitled to immunity from civil suit if (1) his conduct “did not violate clearly established law” or (2) it was “objectively reasonable” for that official to believe that the action did not violate the law. Naumovski v. Norris, 934 F.3d 200, 210 (2d Cir. 2019) (collecting cases). Thus, government officials are shielded from liability “whenever their actions are based on reasonable mistakes of law or fact.” Id.
On a motion to dismiss, a defendant presenting an immunity defense “must accept the more stringent standard applicable to this procedural route . . . [n]ot only must the facts supporting the defense appear on the face of the complaint, but, as with all Rule 12(b)(6) motions . . . the plaintiff is entitled to all reasonable inferences from the facts alleged, not only those that support his claim, but also those that defeat the immunity defense.” McKenna v. Wright, 386 F.3d 432, 436 (2d Cir. 2004) (internal citations omitted). The defense of qualified immunity “usually” cannot support the grant of a Rule 12(b)(6) motion. Id. at 435 (citing Green v. Maraio, 722 F.2d 1013, 1018 (2d Cir. 1983)). It is “generally premature” to address qualified immunity at this stage, Walker v. Mendoza, No. 00-CV-93 (JG), 2000 WL 915070, at *7 (E.D.N.Y. June 27, 2000), because the evidence supporting a finding of qualified immunity is normally adduced during the discovery process and at trial. McCray v. City of New York, No. 03-CV-10080 (DAB), 2007 WL 4352748, at *18 (S.D.N.Y. Dec. 11, 2007).
3. Municipal Liability
A municipality can only be held liable under Section 1983 if it is the “execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy” which causes a constitutional deprivation.” Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658, 694 (1978). In order to hold a city liable under this theory, “a plaintiff is required to plead and prove three elements: (1) an official policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a constitutional right.” Wray v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007). A “causal connection” between the policy and deprivation of the plaintiff's rights must exist. Fernandez v. City of New York, 457 F.Supp.3d 364, 394 (S.D.N.Y. 2020) (citing Vippolis v. Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985)). A municipality is not held liable solely on a respondeat superior theory, nor “solely because it employs a tortfeasor,” but rather only where the municipality itself was the “moving force” behind the deprivation of the plaintiff's rights. Lawton, 2017 WL 3582473, at *6 (cleaned up).
A plaintiff can demonstrate this “policy or custom” by proving at least one of the following:
(1) a formal policy officially endorsed by the municipality;
(2) actions taken by government officials responsible for
establishing the municipal policies that caused the particular deprivation in question; (3) a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a super-vising policy-maker must have been aware; or (4) a failure by policymakers to provide adequate training or supervision to subordinates to such an extent that it amounts to deliberate indifference to the rights of those who come into contact with the municipal employees.Davis v. City of New York, No. 12-CV-3297 (PGG), 2018 WL 10070540, at *4 (S.D.N.Y. Mar. 30, 2018) (cleaned up).
B. Timeliness of Plaintiff's Claims
Defendants move to dismiss any claims barred by waiver or a statute of limitations. Def. Mem. at 9. Oliver executed a waiver and general release to settle a prior lawsuit against the City and the DOE on December 27, 2018, agreeing to release the City and its employees from claims based on any act prior to its execution. Def. Mem. at 3, 9. As Defendants observe, discrimination and retaliation claims brought under § 1983 have a three-year statute of limitations. Def. Mem. at 9; see, e.g., Duplan v. City of New York, 888 F.3d 612, 619 (2d Cir. 2018). Title VII claims require the filing of an administrative complaint with the Equal Employment Opportunity Commission (“EEOC”) within 300 days of the alleged discrimination. Id. at 621. NYSHRL and NYCHRL claims against the DOE have a one-year statute of limitations. N.Y. Educ. Law § 3813(2-b).
Oliver's claims all stem from allegations made against him on March 21, 2019, his March 22, 2019 arrest, and his treatment thereafter. Oliver served a Notice of Claim on June 14, 2019, 84 days after the arrest. SAC ¶ 29. On August 2, 2019, he appeared for a hearing pursuant to Section 50-h of the New York City General Municipal Law; 258 days after his arrest, on December 5, 2019, he filed a charge of discrimination with the EEOC alleging violations of Title VII. SAC ¶¶ 30-31; Pl. Opp. Mem. at 10-12. On December 6, 2019, 259 days after his arrest, Oliver commenced this suit against the Defendants. Dkt. No. 1. Oliver received his Notice of Right to Sue from the EEOC on May 11, 2020, SAC ¶ 31, and on June 4, 2020, Oliver filed the First Amended Complaint. Dkt. No. 33.
Given this chronology and history prior to commencement of this action, the statute of limitations did not run on any of the claims, nor did Oliver's waiver preclude him from filing a lawsuit on a claim arising out of an act occurring after December 27, 2018. Defendants' motion to dismiss on timeliness or waiver grounds should therefore be denied.
C. Analysis of Claims Against the NYPD Defendants
Defendants move to dismiss Oliver's § 1983 claims for false arrest. Def. Mem. at 26-32. An arrest undertaken without a warrant “must be supported by probable cause or else it violates the Fourth Amendment.” United States v. Valentine, 539 F.3d 88, 93 (2d Cir. 2008). To properly analyze a claim for false arrest under § 1983, “courts look to the law of the state in which the arrest occurred.” Smith v. City of New York, No. 18-CV-5079 (MKV), 2021 WL 4267525, at *7 (S.D.N.Y. Sept. 20, 2021) (citing Jaegly v. Couch, 439 F.3d 149, 151-52 (2d Cir. 2006)). “A [S]ection 1983 claim for false arrest is substantially the same as a claim for false arrest under New York law.” Jenkins v. City of New York, 478 F.3d 76, 84 (2d Cir. 2007). “To prevail on a claim for false arrest under New York law, the plaintiff must show that ‘(1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged.'” Smith, 2021 WL 4267525, at *7 (quoting Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012) (cleaned up)). An arresting officer may avoid liability for a claim of false arrest by demonstrating “either 1) he had probable cause for the arrest, or 2) he is protected from liability because he has qualified immunity.” Simpson v. City of New York, 793 F.3d 259, 265 (2d Cir. 2015) (citing Weyant v. Okst, 101 F.3d 845, 852 (2d Cir. 1996)).
Defendants argue that probable cause for Oliver's arrest existed, and even if it did not, the Arresting Officers are entitled to qualified immunity. Def. Mem. at 26-32. The Court will review each of these arguments in turn.
1. Probable Cause
a. Legal Standard
“Probable cause ‘is a complete defense to an action for false arrest' brought under New York law or § 1983.” Ackerson, 702 F.3d at 19 (quoting Weyant, 101 F.3d at 852). Probable cause to arrest exists when officers have “reasonably trustworthy information as to facts and circumstances that are sufficient to warrant a person of reasonable caution” that “the person to be arrested has committed or is committing a crime.” Id. (cleaned up).
In considering the existence of probable cause, courts in the Second Circuit look to which facts were available to the officer at the time of, and immediately before, the arrest. See, e.g., Panetta v. Crowley, 460 F.3d 388, 395 (2d Cir. 2006) (“courts must consider those facts available to the officer at the time of the arrest and immediately before it”) (cleaned up); Gonzalez, 728 F.3d at 155 (“The inquiry is limited to whether the facts known by the arresting officer at the time of the arrest objectively provided probable cause to arrest.”) (internal quotation marks and citation omitted). This evaluation is based on the “totality of the circumstances” and a “full sense of the evidence that led the officer to believe there was probable cause to make an arrest.” Stansbury v. Wertman, 721 F.3d 84, 92-93 (2d Cir. 2013).
b. Application
As an initial matter, Oliver brings false arrest claims against all of the NYPD Defendants, and Defendants do not differentiate among them in their Motion to Dismiss. SAC ¶¶ 166-71; Def. Mem. at 26-32. However, only Taylor and the Five Unknown NYPD Officers are specifically alleged to have been Arresting Officers. SAC ¶ 8. Therefore, because no specific allegations of direct involvement in the arrest are made as to Shea, O'Connell, or Gonzalez, the claims for false arrest against them should be dismissed.
As to the Arresting Officers, Defendants argue that they had probable cause, or at least arguable probable cause, to arrest Oliver for endangering the welfare of a child. Def. Mem. at 28. Endangerment of the welfare of a child under New York Penal Law Section 260.10 requires that a person “knowingly [act] in a manner likely to be injurious to the physical, mental or moral welfare of a child less than seventeen years old.” “The conduct need not actually harm a child, as long as ‘harm was likely to occur, and not merely possible,' and the defendant was ‘aware that the conduct may likely result in harm to a child.'” Pehush v. Ashworth, 757 Fed.Appx. 47, 50 (2d Cir. 2018) (quoting People v. Hitchcock, 98 N.Y.2d 586, 589-91 (2002)) (emphasis in original).
Oliver alleges that upon hearing about G.C.'s allegations, Estwick and other DOE employees “immediately [reported] the Alleged Incident to G.C.'s parents and/or the NYPD, encouraging G.C. and her parents to report the Alleged Incident to the NYPD, and/or by encouraging the NYPD to arrest . . . Oliver without first undertaking any investigation of the Alleged Incident.” SAC ¶ 76. He claims that Estwick “interrupted Oliver's classroom lesson” and “led” him to the entrance of the school where NYPD Officers told Oliver he was under arrest. SAC ¶¶ 79-80.
Putative victim or eyewitness accounts may, on their own, give rise to probable cause to arrest. Ingersoll ex rel. Est. of Intersoll v. LaPlante, 76 Fed.Appx. 350, 354 (2d Cir. 2003) (citing Martinez v. Simonetti, 202 F.3d 625, 634 (2d Cir. 2000)). In their motion, Defendants emphasize that there is no reason to doubt the veracity of an account given by an individual based on her being under the age of 18. Def. Mem. at 31-32. However, this is not the only relevant issue. The Second Amended Complaint does not allege only that the putative victim, G.C., directly reported information to the police, but rather that it is possible the police were made aware of the incident through some method not yet known to Oliver. See SAC ¶ 92.
Accepting all factual allegations as true and drawing all reasonable inferences in favor of Oliver requires the Court to consider that at the time of the arrest, the only information known to the officers was provided by either Estwick or G.C.'s parents - third party informants who did not witness the incident firsthand. SAC ¶ 96. Probable cause cannot be found as a matter of law on the basis of information known by the police at the time of the arrest when it is unclear what was said to the police, and by whom. Lurch v. City of New York, No. 19-CV-11254 (VEC) (OTW), 2021 WL 842616, *4 (S.D.N.Y. Feb. 10, 2021) (citing United States v. Freeman, 735 F.3d 92, 98 (2d Cir. 2013) (anonymous 911 call insufficient to establish probable cause); Mizrahi v. City of New York, No. 15-CV-6084 (ARR) (LB), 2018 WL 3848917, *13 (E.D.N.Y. Aug. 13, 2018) (finding 911 call insufficient probable cause to arrest)), adopted by 2021 WL 1172506 (Mar. 29, 2021). Here, discovery is required before a factual determination can be made regarding what was known to the police at the time of the arrest. Thus, although “[t]he question of whether or not probable cause existed may be determinable as a matter of law if there is no dispute as to the pertinent events and the knowledge of the officers” - that is not the case here. Weyant, 101 F.3d at 852.
Further, there are no allegations in the Second Amended Complaint that an eyewitness, or even the alleged victim, spoke directly with the police. On the contrary, Oliver alleges that up to the point of arrest, the NYPD had not investigated the incident and did not have any evidence that he posed an immediate threat; indeed, he alleges that “none of the Arresting Officers attempted to speak to [him] or any of the other TSMS students or staff known to be potential witnesses to the Alleged Incident” prior to his arrest. SAC ¶¶ 78, 85. Officers are not required to look for evidence that could eliminate probable cause. Panetta, 460 F.3d at 398. However, the purported failure of Defendants to take “easy investigative steps” could indicate that they made up their minds based solely on “secondhand reports.” Pehush, 757 Fed.Appx. at 51.
In Pehush, a teacher (Pehush) was arrested for child abuse under New York Penal Law § 260.10(1) after school officials reported her to authorities. Id. at 48-49. In contrast to the events in Oliver's case, police officers in Pehush interviewed and received a sworn statement from the teaching assistant who witnessed the offending incident, and also interviewed and received written, sworn statements from other teachers relaying secondhand accounts of what they heard from the witnessing teaching assistant. Id. at 48. Two days after responding to the call, a detective interviewed Pehush about the incident at the police station for approximately an hour before speaking with the District Attorney's office, and only then placed her under arrest. Id. at 49. In that case, the Second Circuit found genuine issues of material fact precluded summary judgment on qualified immunity as a matter of law. Id. at 52. In so ruling, the Circuit observed that law enforcement “inexplicably” failed to speak with the only other eyewitness, never asked the teaching assistant witness to “recreate the physical circumstances” of the alleged incident which she described briefly in her statement, and may have ignored later, exculpatory statements from an eyewitness. Id. at 51. The Second Circuit remanded for trial, explaining that the failure to take these steps “supports an inference that [the Defendant] had made up her mind based only on . . . secondhand reports.” Id. at 51.
Here, Oliver alleges the NYPD conducted even less of an investigation than in Pehush. According to Oliver, one of the unknown Arresting Officers told him that the NYPD had been holding him “while it completed its investigation of the Alleged Incident,” and that they spoke to two students “identified as witnesses” and that neither corroborated G.C.'s account. SAC ¶ 97. Another NYPD Officer allegedly said to Oliver that, “given the allegations at issue, the NYPD's arrest of [Oliver] was ‘unusual,' and that similar cases were not ‘typically' handled in the same way.” SAC ¶ 98.
Thus, because the facts as alleged in the Second Amended Complaint support “an inference that [Defendants] had made up [their] mind[s] based only on . . . [a] secondhand report[],” Pehush, 757 Fed.Appx. at 51, Defendants have not established that probable cause existed to arrest Oliver as a matter of law, and their motion to dismiss on this ground should be denied as to the Arresting Officers.
2. Qualified Immunity
Defendants separately argue that the false arrest claim should be dismissed because the Arresting Officers are entitled to qualified immunity. Def. Mem. at 3032. For the reasons which follow, the Court recommends finding that the Arresting Officers have not demonstrated on the current record that they are entitled to qualified immunity, and the motion to dismiss on this ground should be denied as well.
a. Legal Standard
“An arresting officer is entitled to qualified immunity even when . . . probable cause to arrest does not exist, ‘if he can establish that there was ‘arguable probable cause' to arrest.'” Ackerson, 702 F.3d at 21 (quoting Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir. 2004)); see also Soto v. City of New York, No. 13-CV-8474 (LTS) (JLC), 2017 WL 892338, at *4 (S.D.N.Y. Mar. 6, 2017). “Arguable probable cause exists if either (a) it was objectively reasonable for the officer to believe that probable cause existed, or (b) officers of reasonable competence could disagree on whether the probable cause test was met.” Ackerson, 702 F.3d at 21 (cleaned up). “In this respect, the qualified immunity test is more favorable to the officers than the one for probable cause.” Id. (internal quotation marks omitted). “The test is not toothless, however: ‘[i]f officers of reasonable competence would have to agree that the information possessed by the officer at the time of arrest did not add up to probable cause, the fact that it came close does not immunize the officer.'” Id. (quoting Jenkins, 478 F.3d at 87).
To find qualified immunity after the violation of a constitutional right (such as via an arrest without probable cause), a court must “determine whether the application of that right to the circumstances at issue was ‘clearly established' at the time of the conduct, and whether an ‘objectively reasonable' officer would have known that his conduct amounted to such a violation.” Naumovski, 934 F.3d at 211. The Supreme Court has “repeatedly” reminded courts that “clearly established law” must be specific to the facts of the case. Vasquez v. Maloney, 990 F.3d 232, 238 (2d Cir. 2021) (citing Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)); Naumovski, 934 F.3d at 211. While “existing precedent must have placed the statutory or constitutional question beyond debate,” the Supreme Court does “not require a case directly on point.” al-Kidd, 563 U.S. at 741. Officers are thus entitled to qualified immunity unless the “existing law” was “‘sufficiently clear' that every ‘reasonable official would understand that what he is doing' is unlawful.” District of Columbia v. Wesby, 138 S.Ct. 577, 589 (2018) (internal citations omitted). Qualified immunity rests on a “demanding standard” that protects “'all but the plainly incompetent or those who knowingly violate the law.'” Id. (internal citations omitted). Relevant case law is “usually,” but not always, needed to clearly establish whether or not probable cause existed. Id. at 590.
Qualified immunity is an “affirmative defense”; therefore, “defendants bear the burden of showing that there was arguable probable cause.” Nunez v. City of New York, No. 14-CV-4182 (RJS), 2016 WL 1322448, at *5 (S.D.N.Y. Mar. 31, 2016) (quoting Gaston v. City of New York, 851 F.Supp.2d 780, 795 (S.D.N.Y. 2012) (collecting cases)). “On a motion to dismiss, . . . a qualified immunity defense based on arguable probable cause ‘faces a formidable hurdle . . . and is usually not successful.'” Id. (internal citations omitted); see also Taylor v. Vt. Dep't of Educ., 313 F.3d 768, 793 (2d Cir. 2002) (“[A] ruling on the availability of a qualified immunity defense would be premature” because “[t]he qualified immunity issue . . . turn[ed] on factual questions that [could] not be resolved” on a Rule 12(b)(6) motion.”).
b. Application
Here, qualified immunity turns on a disputed factual question that cannot be resolved on a Rule 12(b)(6) motion: the knowledge of the officers at the time of the arrest. In a false arrest case, “only where the facts are undisputed or clearly established does probable cause become a question of law for the court.” Amobi v. D.C. Dept. of Corr., 755 F.3d 980, 990 (D.C. Cir. 2014). For a claim of false arrest in New York, “the issue of probable cause is a question of law to be decided by the court only where there is no real dispute as to the facts or the proper inferences to be drawn from such facts.” Parkin v. Cornell Univ., Inc., 78 N.Y.2d 523, 529 (1991).
As described above, the Second Circuit has previously held that the existence of probable cause could not be determined as a matter of law when issues of material fact existed as to what a detective knew at the time that she arrested a teacher for endangering the welfare of a child under New York law based on third-party allegations. Pehush, 757 Fed.Appx. at 52.
Moreover, whether the law was clearly established is a determination “made not from the perspective of courts or lawyers, but from that of a reasonable officer in the defendant's position.” Ganek v. Leibowitz, 874 F.3d 73, 81 (2d Cir. 2017) (citations omitted). Here, Oliver claims that an NYPD Officer described the arrest as “unusual,” which by reasonable inference gives rise to the plausibility that a reasonable officer may have understood “that what he [was] doing was unlawful,” and may have in fact “knowingly” violated the law. Wesby, 138 S.Ct. at 589. At the motion to dismiss stage, this alleged fact, particularly when coupled with the established case law concerning non-witness informants described above, creates a factual question as to whether the arrest violated clearly established law.
When viewed in the light most favorable to Oliver, the facts alleged in the Second Amended Complaint indicate the plausibility of an arrest made on the sole basis of an accusation provided by a non-witness, without reasonable efforts at any available investigation, and described by a fellow officer as “unusual.” The totality of the circumstances therefore precludes any recommendation, at this stage of the proceedings, that the claim be dismissed.
In sum, drawing all reasonable inferences in Oliver's favor, Defendants have not met their burden of establishing that probable cause, or even arguable probable cause, existed at the time of the arrest. The Court therefore recommends that the motion to dismiss the false arrest claim as to the Arresting Officers including Taylor be denied. However, due to their lack of involvement, the Court recommends that the motion to dismiss the false arrest claim as to Shea, O'Connell, and Gonzalez, be granted.
3. State Law Claims
Oliver also brings claims against the NYPD Defendants for violations of equal protection and security against unreasonable searches, seizures, and interceptions guaranteed by the New York State Constitution. SAC ¶ 183-88. It is well-settled that “no private right of action exists for violations of the New York State Constitution where the plaintiff has an alternative remedy under § 1983 for violations of parallel provisions of the U.S. Constitution.” Buari v. City of New York, 530 F.Supp.3d 356, 408 (S.D.N.Y. 2021) (cleaned up); see also Mesa v. City of New York, No. 09-CV-10464 (JPO), 2013 WL 31002, at *33 (S.D.N.Y. Jan. 3, 2013). Unreasonable search and seizure claims are largely cognizable under the Fourth Amendment of the United States Constitution, and equal protection claims can be brought under the Fourteenth Amendment. See U.S. CONST. amends. IV, XIV; N.Y. CONST. art. I, §§ 11, 12. Equal protection claims under the New York State Constitution in particular are “virtually coextensive with those of the U.S. Constitution.” Coakley v. Jaffe, 49 F.Supp.2d 615, 628 (S.D.N.Y. 1999).
As in Buari, where the plaintiff could not sustain his state constitutional due process claim against the NYPD Defendants because § 1983 provided an adequate remedy, so too oliver cannot maintain his claims under Article I, Sections 11 and 12 of the New York Constitution because § 1983 provides an adequate remedy here. Buari, 530 F.Supp.3d at 409. Thus, the motion to dismiss claims against the individual NYPD Defendants under Article I, Sections 11 and 12 of the New York Constitution should be granted.
4. Derivative Claims
Defendants move to dismiss oliver's derivative claims against the NYPD Defendants, including the claims for supervisory responsibility, respondeat superior, and municipal liability. Def. Mem. at 3, 26. In the following subsections, the Court will examine each of these issues.
a. Supervisory Liability of Shea, O'Connell, and Gonzalez
Defendants move to dismiss Oliver's supervisory liability claims against Shea, O'Connell, and Gonzalez. Def. Mem. at 33-35. As a threshold matter, because Oliver has adequately pleaded claims for false arrest, these claims should not be dismissed on the grounds of failing to plead an underlying violation, as Defendants argue. Def. Mem. at 3.
It is well-settled, however, that “supervisors cannot be held liable based solely on the alleged misconduct of their subordinates.” Vasquez v. Reilly, No. 15-CV-9528 (KMK), 2017 WL 946306, at *11 (S.D.N.Y. Mar. 9, 2017) (quoting Lindsey v. Butler, 43 F.Supp.3d 317, 329 (S.D.N.Y. 2014)) (internal quotation marks omitted). “‘Because vicarious liability is inapplicable to . . . § 1983 suits,' [plaintiff] must raise a genuine dispute as to whether ‘each Government-official defendant, through the official's own individual actions, has violated the Constitution.'” Victory v. Pataki, 814 F.3d 47, 67 (2d Cir. 2016) (emphasis omitted) (quoting Iqbal, 556 U.S. at 676). “There is no special rule for supervisory liability,” rather, the plaintiff must “plead and prove ‘that each Government-official defendant, through the official's own individual actions, has violated the Constitution.'” Tangreti v. Bachmann, 983 F.3d 609, 618 (2d Cir. 2020) (quoting Iqbal, 556 U.S. at 676). In Tangreti, the Second Circuit overturned the “special standards for supervisory liability set forth” in Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), and instead required that “[t]he violation must be established against the supervisory official directly.” Id. at 617-18.
Oliver claims Gonzalez acted in a supervisory capacity as a sergeant and “approv[ed]” his arrest. SAC ¶ 93. Oliver is “uncertain” whether the unknown Arresting Officers included Gonzalez. SAC ¶ 8. Oliver alleges no additional facts demonstrating liability against Shea and O'Connell other than their status as commissioner and commanding officer, respectively.
Supervisory Officers may rely on information provided by the Arresting Officers in making charging decisions. Martinez v. Simonetti, 202 F.3d 625, 634-35 (2d Cir. 2000). Gonzalez therefore did not have a duty to conduct an independent investigation before deciding to charge an individual because it is reasonable for police officers to rely on the accounts provided by other officers at the scene. Id. at 635. In Martinez, the court denied summary judgment as to a charging officer despite the police officers at the station house receiving conflicting accounts from officers at the scene of the incident leading to the arrest. Id. at 634-35. However, at the motion to dismiss stage, supervisory liability claims can survive when a plaintiff alleges that the officers “approved Plaintiff's arrest.” Bobbit v. Marzan, No. 16-CV-2042 (AT), 2020 WL 5633000, at *7 n.5 (S.D.N.Y. Sept. 21, 2020). Because Gonzalez is alleged to have been involved in the arrest by approving it, the record needs to be further developed to determine his knowledge of the facts giving rise to Oliver's arrest.
As to O'Connell and Shea, however, Oliver has not pleaded any non-conclusory facts demonstrating their personal involvement in the underlying violation whatsoever. Thus, the motion to dismiss supervisory liability claims as against Gonzalez should be denied, but granted as against O'Connell and Shea.
b. Respondeat Superior Liability of the City
Defendants move to dismiss the claims against the NYPD Defendants in their entirety, but they do not specifically analyze Oliver's seventh claim for relief against the City under the theory of respondeat superior. See SAC ¶ 189-91. Nonetheless, “a municipality cannot be held liable under § 1983 on a respondeat superior theory,” Monell, 436 U.S. at 691, nor “solely because it employs a tortfeasor.” Lawton, 2017 WL 3582473, at *6 (cleaned up). Oliver's respondeat superior claim as to the City of New York for the conduct of the Officers pursuant to § 1983 thus fails as a matter of law. Therefore, to the extent the Defendants move to dismiss this claim as well, the Court recommends its dismissal.
To the extent that Oliver brings his respondeat superior claim against the City for the conduct of Officer Taylor pursuant to the New York State Constitution, SAC ¶¶ 183-88, the Court likewise recommends the claim be dismissed because the Court recommends dismissing the underlying state law claims (described above). Should those claims be permitted to proceed, however, so too may the derivative respondeat superior claim against the City pursuant to the state law claims. “[U]nlike cases brought under § 1983, municipalities may be liable for the common law torts . . . committed by their employees under the doctrine of respondeat superior.” Mesa, 2013 WL 31002, at *34. “[S]tate law claims . . . may proceed due to the potential for vicarious liability for the actions of the officers as its employees.” Reyes v. City of New York, 992 F.Supp.2d 290, 299 (S.D.N.Y. 2014).
c. Municipal Liability
A municipality or municipal corporation may be liable under § 1983 if “the governmental body itself subjects a person to a deprivation of rights or causes a person to be subjected to such deprivation.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (internal quotation marks omitted). It is only “when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Monell, 436 U.S. at 694. As described supra, this policy or custom can be proven by demonstrating “a practice so consistent and widespread that, although not expressly authorized, constitutes a custom or usage of which a super-vising policy-maker must have been aware . . .” Davis, 2018 WL 10070540, at *4 (quoting Vasquez v. Rockland Cty., 15-CV-8912 (KMK), 2017 WL 456473, at *4 (S.D.N.Y. Feb. 1, 2017)). A plaintiff must allege “that the relevant practice is so widespread as to have the force of law,” essentially demonstrating that the custom is the “standard operating procedure of the local government entity.” Kucharczyk v. Westchester Cty, 95 F.Supp.3d 529, 544 (S.D.N.Y. 2015) (cleaned up).
Here, Oliver claims that the City “knew or should have known of the NYPD's widespread practice of racial profiling and bias-based policing but did not take any steps to correct this unlawful practice, and instead sanctioned a culture in which acts of racial profiling and bias-based policing were common and tolerated.” SAC ¶ 174. He asserts that this custom of bias-based policing led to his “unusual” arrest, when purportedly similarly situated white teachers were not arrested for similar accusations. SAC ¶ 163.
“[T]he operative inquiry at this stage is not whether the [sources cited in the allegations] will ultimately support a finding of Monell liability, but rather whether Plaintiff has sufficiently alleged a policy or practice that is widespread and of which policymakers must have been aware.” Kucharczyk, 95 F.Supp.3d at 545. In his effort to establish Monell liability, Oliver relies on media reports, a city investigation, and the decision in Floyd v. City of New York, 959 F.Supp.2d 540 (S.D.N.Y. 2013) to establish that the NYPD “has a widespread practice of racial profiling and bias-based policing.” SAC ¶ 174; Pl. Opp. Mem. at 34-36.
Oliver's assertion that the court in Floyd found the NYPD to have a general policy of indirect racial profiling, Pl. Opp. Mem. at 34-36, is without merit. Floyd's holding is specific to racial profiling in the context of stop-and-frisk, or Terry stops, which is a subject not relevant to Oliver's case. Floyd, 959 F.Supp.2d at 658-67. In the Second Amended Complaint, Oliver acknowledges this holding, stating that “the Court concluded that the NYPD had a ‘policy of indirect racial profiling' in its application of ‘stop-and-frisk.'” SAC ¶ 101 (underlining added).
Oliver's reliance on media reports is similarly unpersuasive. Media reports published after the arrest do not demonstrate that policymakers “must have been aware” of the facts contained therein. Kucharczyk, 95 F.Supp.3d at 545. Only one of the media reports to which Oliver cites was published prior to his arrest. SAC ¶ 103 n.7 (citing Benjamin Mueller et al., Surest Way to Face Marijuana Charges in New York: Be Black or Hispanic, N.Y. TIMES (May 13, 2018), https://www.nytimes.com/2018/05/13/nyregion/marijuana-arrests-nyc-race.html). The report demonstrates racial disparities in NYPD arrests; however, the analysis is specific to marijuana-related arrests, and is thus not sufficient on its own to put the City on notice. Id.
Oliver also cites to a New York City Department of Investigation report published in June 2019 to claim that “[i]n the years since the ‘stop-and-frisk' practice purportedly ended, the NYPD regularly received complaints of bias-based policing.” SAC ¶ 104. However, this source cannot serve as a predicate for a claim of Monell liability, since it was released months after Oliver's arrest in March 2019. See Fernandez, 457 F.Supp.3d at 395 (“[C]ourts have consistently rejected the notion that a report issued long after the events in question could have put the City on notice of a policy that was causing constitutional deprivations.”).
Thus, the facts alleged in the complaint regarding the NYPD's widespread practice of racial profiling and bias-based policing that may have led to Oliver's arrest are not sufficient to rise to the level of plausibility required to survive a motion to dismiss. The NYPD Defendants' motion to dismiss the Monell claim for municipal liability against the City should thus be granted.
5. Summary of Claims Against the NYPD Defendants
In sum, the Court recommends Defendants' motion be granted as to:
1. The New York State Constitution claims against the City of New York, Shea, O'Connell, Gonzalez, Taylor, and the Five Unknown NYPD Officers (Fifth and Sixth Claims);
2. The False Arrest/Arrest without Probable Cause claims against Gonzalez, O'Connell, and Shea (First and Second Claims);
3. The Supervisory Liability claims against O'Connell and Shea (Fourth Claim);
4. The Respondeat Superior claim against the City of New York (Seventh Claim); and
5. The Monell Liability claim against the City of New York (Third Claim); and denied as to:
1. The False Arrest/Arrest without Probable Cause claims against Taylor and the Five Unknown NYPD Officers (First and Second Claims); and
2. The Supervisory Liability claim against Gonzalez (Fourth Claim).
Defendants argue any claims of excessive force or assault and battery should be dismissed for failure to state a claim upon which relief can be granted. Def. Mem. at 39-41. According to Oliver, he does not assert any claims of “unlawful search, excessive force, assault, and battery.” Pl. Opp. Mem. at 29 n.5. Thus, any such claims do not need to be addressed.
D. Analysis of Claims Against the DOE Defendants
The DOE Defendants have moved to dismiss all of Oliver's discrimination, hostile work environment, and retaliation claims. Those claims consist of the following:
• Race Discrimination under Title VII against the DOE;
• Hostile Work Environment under Title VII against the DOE;
• Retaliation under Title VII against the DOE;
• Race Discrimination under § 1983 against TSMS, Chan, Mustillo, and Estwick;
• Hostile Work Environment under § 1983 against TSMS, Chan, Mustillo, and Estwick;
• Retaliation under § 1983 against TSMS, Chan, Mustillo, and Estwick;
• Race Discrimination under the NYSHRL and NYCHRL against the DOE, TSMS, Chan, Mustillo, and Estwick;
• Hostile Work Environment under the NYSHRL and NYCHRL against the DOE, TSMS, Chan, Mustillo, and Estwick; and
• Retaliation under the NYSHRL and NYCHRL against the DOE, TSMS, Chan, Mustillo, and Estwick.
In addition, Oliver asserts the following derivative claims:
• Monell liability against the DOE;
• Supervisory Liability against Chan and Mustillo; and
• Respondeat Superior liability against the DOE.
The Court will first review the claims pertaining to the underlying legal issues (discrimination, including race discrimination and hostile work environment, and retaliation). For the reasons that follow, the Court recommends finding that Oliver pleaded sufficient facts to state a claim for relief under each of those theories. The Court will then discuss which of the Defendants may be liable for each of those underlying issues, followed by analysis of the derivative claims.
1. Discrimination
a. Legal Standards
Under Title VII, it is “unlawful for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Section 1983, “through its application of the Equal Protection Clause of the Fourteenth Amendment, [likewise] ‘protect[s] public employees from various forms of discrimination, including hostile work environment and disparate treatment' on the basis of race.” Littlejohn, 795 F.3d at 320 (quoting Demoret v. Zegarelli, 451 F.3d 140, 149 (2d Cir. 2006)). The analysis for a § 1983 employment discrimination claim is the same as for employment discrimination claims brought under Title VII, except that § 1983 claims can be brought against individuals acting under color of state law whereas Title VII claims cannot. See, e.g., Demoret, 451 F.3d at 149.
While a prima facie case of employment discrimination requires application of the well-known burden-shifting approach set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), surviving a motion to dismiss requires only that the plaintiff “give fair notice of the basis of [his] claims and the claims themselves must be facially plausible.” Shamilov, 2011 WL 6085550, at *4. See also Colon v. City of New York et al., No. 19-CV-10435 (PGG) (SLC), 2021 WL 4427169, at *7 (S.D.N.Y. Sept. 26, 2021) (cleaned up) (“[A] plaintiff alleging employment discrimination or retaliation is not required to plead facts sufficient to establish a prima facie case . . . [i]nstead, the ordinary rules for assessing the sufficiency of a complaint under Federal Rule of Civil Procedure 8(a)'s notice pleading standard applies”).
A plaintiff can establish a claim of disparate treatment under Title VII in one of two ways: by demonstrating that (1) he “suffered an adverse job action under circumstances giving rise to an inference of discrimination on the basis of race, color, religion, sex, or national origin,” or (2) “harassment on one or more of those bases amounted to a hostile work environment.” See Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004) (citing Raniola v. Bratton, 243 F.3d 610, 617 (2d Cir. 2001)).
Because the standards for discrimination under Title VII, § 1983, and the NYSHRL are the same, the Court may consider them together. See, e.g., Marquez v. Hoffman, No. 18-CV-7315 (ALC), 2021 WL 1226981, at *13 (S.D.N.Y. Mar. 31, 2021); Pucino v. Verizon Wireless Commc'ns, Inc., 618 F.3d 112, 117 n. 2 (2d Cir. 2010). NYCHRL claims, however, must be analyzed “separately and independently from any federal and state law claims, construing the NYCHRL's provisions broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.” Marquez, 2021 WL 1226981, at *15 (quoting Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013)).
Oliver asserts various claims based on 1) race discrimination and 2) hostile work environment. The Court will review each of those claims in the following subsections.
b. Race Discrimination
Oliver asserts claims of race discrimination under § 1983, the NYSHRL, and the NYCHRL against TSMS, Chan, Mustillo, and Estwick, and a claim of race discrimination under NYSHRL and NYCHRL against the DOE. Race discrimination requires a plaintiff to show that “(1) []he was within the protected group, (2) []he was qualified for the position, (3) []he experienced adverse employment action, and (4) such action occurred under circumstances giving rise to an inference of discrimination.” Barrer-Cohen v. Greenburgh Cent. Sch. Dist., No. 18-CV-1847 (NSR), 2019 WL 3456679, at *3 (S.D.N.Y. July 30, 2019) (citing Johnson v. Andy Frain Servs., Inc., 683 Fed.Appx. 68, 70 (2d Cir. 2016)). “[E]mployment discrimination claims under Title VII require a showing that the conduct complained of occurred because of a plaintiff's membership in a protected class.” Concey v. N.Y. State Unified Court Sys., No. 08-CV-8858 (PGG), 2011 WL 4549386, at *14 (S.D.N.Y. Sept. 30, 2011).
Here, Oliver has adequately pled that he is a Black man who is qualified for his job as a teacher based on his education and years in the position, satisfying the first two elements. SAC ¶¶ 1, 44-45. Thus, the remaining elements in question are: (i) whether Oliver pled facts adequately alleging he suffered an adverse employment action, and (ii) whether Oliver has pled sufficient facts to raise an inference of discrimination.
i. Adverse Employment Action
“A plaintiff sustains an adverse employment action if he or she endures a materially adverse change in the terms and conditions of employment.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (citations omitted). Such an action must be more than a “mere inconvenience” or “an alteration of job responsibilities.” Id. (quoting Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003) (internal quotation marks omitted)).
“Everyday workplace grievances, disappointments, and setbacks do not constitute adverse employment actions.” Concey, 2011 WL 4549386, at *15 (quoting Walder v. White Plains Bd. of Educ., 738 F.Supp.2d 483, 498 n.18 (S.D.N.Y. 2010) (internal citations omitted). Materially adverse employment actions may include but are not limited to termination, decrease in salary, less distinguished title, material loss of benefits, or significantly diminished material responsibilities. See Vega, 801 F.3d at 85; Terry, 336 F.3d at 138; Concey, 2011 WL 4549386, at *15.
Whether an action constitutes an adverse employment action must be determined on a “case-by-case basis.” Pimentel v. City of New York, No. 00-CV-326 (SAS), 2002 WL 977535, at *3 (S.D.N.Y. May 14, 2002). Oliver alleges that he suffered adverse employment actions when the DOE Defendants assigned him to the Rubber Room. See SAC ¶¶ 109-16. Specifically, he alleges that his teaching responsibilities were taken away, he was precluded from partaking in other activities that would have provided additional revenue including teaching summer school, and he was unable to receive a performance rating for the academic year, rendering him ineligible to seek a transfer to another school. SAC ¶¶ 109, 115-16. Even after returning to TSMS following his assignment to the Rubber Room, Oliver was “unable” to participate in per session activities that provide additional income despite seeking to do so. SAC ¶ 120.
Notably, other courts have found that assignment to the Rubber Room is “plainly an adverse employment action.” Batyreva v. N.Y.C. Dep't of Educ., No. 07-CV-4544 (PAC) (DF), 2010 WL 3860401, at *12 (S.D.N.Y. Oct. 1, 2010), aff'd, 464 Fed.Appx. 31 (2d Cir. 2012); see also Thomas v. NYCDOE, No. 10-CV-464 (EK) (CLP), 2021 WL 2646350, at *5 (E.D.N.Y. June 28, 2021). Oliver was assigned to the Rubber Room from March 22, 2019 to June 6, 2019. SAC ¶¶ 108, 109, 118. Further, when a change in responsibilities is “so significant as to constitute a setback to the plaintiff's career,” the change may be an adverse employment action. Rosen v. N.Y.C. Dep't of Educ., No. 18-CV-6670 (AT), 2019 WL 4039958, at *7 (S.D.N.Y. Aug. 27, 2019) (cleaned up). Significant changes in responsibilities that suggested a demotion in Rosen included denying the plaintiff access to information needed to carry out her job, stripping her of her duties in a “purposeful public forum,” singling her out in public for verbal attacks, and asking her to return to classroom teaching from a different position. Id. Oliver alleges similar public humiliation, including that he “was refused entrance into a faculty meeting about his arrest” and was “immediately escorted out of his classroom by school safety officers.” SAC ¶ 108. Estwick sent an email to the parents of TSMS students informing them of Oliver's reassignment pending the results of an investigation, allegedly a “code word” for being removed to the Rubber Room. SAC ¶¶ 112-13. Oliver's reassignment being “permanently” listed on employment records within DOE, SAC ¶ 117, and the fact that he is “not eligible for a hardship transfer” due to the disciplinary letter from Mustillo, SAC ¶¶ 131-33, each may fairly be characterized as an alleged “setback to the plaintiff's career” that could rise to the level of an adverse employment action. Rosen, WL 4039958, at *7.
Finally, in the Second Circuit, disciplinary procedures such as suspension with pay “may rise to the level of an adverse employment action,” Barrer-Cohen, 2019 WL 3456679, at *3 (citing Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012)), particularly when an employer “takes actions beyond the employee's normal exposure to disciplinary procedures.” Joseph v. Leavitt, 465 F.3d 87, 92 n.1 (2d Cir. 2006) (paid suspension during an investigation could potentially be an adverse action). The relevant question is “whether the employer has simply applied reasonable disciplinary procedures to an employee or if the employer has exceeded those ....” Id. Here, the email that Estwick sent to TSMS parents regarding Oliver's reassignment may have “exceeded” reasonable disciplinary procedures because, as alleged, “[e]mails broadcasting a teacher's reassignment to the Rubber Room are not common” when an individual is reassigned. SAC ¶ 113.
For these reasons, Oliver has pled sufficient facts to allege that he suffered an adverse employment action.
ii. Inference of Discrimination
On a motion to dismiss in an employment discrimination action, “a plaintiff must plausibly allege that . . . his race, color, religion, sex, or national origin was a motivating factor in the [adverse] employment decision.” Jeanty v. Rhino, No. 21-CV-8326 (LTS), 2021 WL 4865202, at *2 (S.D.N.Y. Oct. 18, 2021) (quoting Vega, 801 F.3d at 86). A plaintiff “may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.” Id. (quoting Vega, 801 F.3d at 87). At the pleadings stage, a plaintiff need only allege that he “can sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation.” Lewis v. Roosevelt Island Operating Corp., 246 F.Supp.3d 979, 988 (S.D.N.Y. 2017) (quoting Littlejohn, 795 F.3d. at 311).
“A showing of disparate treatment-that is, a showing that the employer treated plaintiff ‘less favorably than a similarly situated employee outside his protected group'-is a recognized method of raising an inference of discrimination . . . .” Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (quoting Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000)). “A plaintiff relying on disparate treatment evidence ‘must show [he] was similarly situated in all material respects to the individuals with whom [he] seeks to compare [himself].'” Id. (quoting Graham, 230 F.3d at 39).
Oliver alleges that he was disciplined more harshly than three white teachers to whom he claims he is similarly situated for similar accusations. Specifically, he identifies three comparators, White Teacher Nos. 1, 2, and 3, who, like him, are male teachers at TSMS supervised by Estwick and TSMS's Assistant Principal. SAC ¶¶ 138, 142, 145. Two of these comparators were at one time co-teachers with Oliver. SAC ¶¶ 138, 145. As alleged in the Second Amended Complaint, White Teacher No. 1 “forcefully grabbed children by the arms,” “commented on at least one female student's skin and another student's weight,” and made “racially-charged remarks in the classroom.” SAC ¶¶ 135-36.
G.C., the same student who accused Oliver of “caress[ing]” her arm and saying something “along the lines of ‘I know you love me, or you know you love me,'” also accused White Teacher No. 2 of “inappropriately rubb[ing] against her.” SAC ¶¶ 73, 140. Oliver alleges that G.C. complained to TSMS about the conduct of White Teacher No. 2, much as G.C. complained to Estwick about the conduct of Oliver. SAC ¶¶ 73, 140. According to Oliver, upon information and belief, White Teacher No. 2 was never subjected to disciplinary action nor did TSMS conduct an investigation into the incident, SAC ¶ 141, whereas Oliver was arrested and reassigned to the Rubber Room pending an investigation. SAC ¶ 112. These details identify, with adequate specificity, the individuals to whom Oliver compares himself, how their workplace conduct compared to his, and how they were disparately treated following similar accusations. See, e.g., Henry v. N.Y.C. Health & Hosp. Corp., 18 F.Supp.3d 396, 408 (S.D.N.Y. 2014) (inference of race discrimination may be supported by demonstrating that similarly situated employees of different race were treated more favorably). While the specific details of the incident are certainly not identical, given the facts as described, they are also not “incomparable” as Defendants argue. Def. Mem. at 18.
Defendants contend that making allegations “upon information and belief” as the basis of a comparator claim is “insufficient to plausibly allege an inference of discrimination.” Def. Mem. at 16-17. However, that is the case when allegations are not supported with a statement of facts that creates a plausible inference of their truth, which is not the situation here. “The Second Circuit has ruled that pleading on information and belief in employment discrimination suits can suffice to meet the relevant plausibility standard when the relevant facts are particularly within the possession, knowledge, and control of the defendant.” Moore v. City of New York, No. 15-CV-6600 (GBD) (JLC), 2017 WL 35450, at *23 (S.D.N.Y. Jan. 3, 2017) (citing Arista Records, LLC v. Doe, 604 F.3d 110, 120 (2d Cir. 2010); see also Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008)). Pleading “upon information and belief” is not fatal to a plaintiff's claims when, for example, he states the amount of his base salary, identifies at least one comparator, and alleges that the comparator received a higher base salary. See Barrett v. Forest Labs., Inc., 39 F.Supp.3d 407, 432 (S.D.N.Y. 2014).
Similarly, here, the allegations at issue are factual in nature rather than legal conclusions. For example, Oliver (1) stated that G.C. accused White Teacher No. 2 of inappropriate physical conduct, (2) specified the disciplinary response White Teacher No. 2 received, and (3) described the different disciplinary response White Teacher No. 2 received following G.C.'s allegations of inappropriate physical conduct. SAC ¶¶ 140-43. At the motion to dismiss stage the key question is whether the defendants have “fair notice of what the plaintiff's claim is and the grounds upon which it rests.” Barrett, 39 F.Supp.3d at 432 (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)). Oliver has provided sufficient “fair notice.” Id.
While development of the record may establish that the comparators described by Oliver are ultimately not similarly situated to him, at this stage of the proceedings, a plaintiff only needs to provide “minimal support” to show that the employer was motivated by discriminatory intent in order to survive a motion to dismiss. Littlejohn, 795 F.3d at 311. With respect to Estwick, Oliver has done so. However, he has pled no facts specific to actions taken by Chan, Mustillo, or TSMS, and the claims of race discrimination against them should be dismissed.
The personal involvement of each of the named defendants is further discussed below.
c. Hostile Work Environment
Oliver asserts claims of hostile work environment under § 1983, the NYSHRL, and the NYCHRL against TSMS, Chan, Mustillo, and Estwick, and claims of hostile work environment under Title VII, NYSHRL, and NYCHRL against the DOE. For the reasons which follow, I recommend the motion to dismiss as to TSMS, Chan, and Mustillo be granted, but denied as to Estwick.
i. Legal Standards
The standard for hostile work environment claims under Title VII, § 1983, and the NYSHRL is the same. Lewis, 246 F.Supp.3d at 989 n.5. In order to state a claim for a hostile work environment, a plaintiff must allege facts sufficient to demonstrate that “the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Littlejohn, 795 F.3d at 320-21 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotations omitted)). A plaintiff must plead facts “tending to show” the following:
that the complained of conduct: (1) is objectively severe or pervasive-that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff's . . . protected characteristic.Robinson v. Harvard Prot. Servs., 495 Fed.Appx. 140, 141 (2d Cir. 2012) (quoting Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007)). Additionally, a plaintiff “must demonstrate a specific basis for imputing the conduct creating the hostile work environment to the employer.” Feingold, 366 F.3d at 150; see also Terry, 336 F.3d at 148 n.20.
In evaluating claims of hostile work environment, courts consider the totality of the circumstances, weighing factors such as “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.” Harris, 510 U.S. at 23. “Isolated acts, unless very serious,” do not sustain a hostile work environment claim. Alfano v. Costello, 294 F.3d 365, 374 (2d Cir. 2002).
“While the standard for establishing a hostile work environment is high, [the Second Circuit has] repeatedly cautioned against setting the bar too high ....” Terry, 336 F.3d at 148. At the pleadings stage, “a plaintiff need only plead facts sufficient to support the conclusion that []he was faced with ‘harassment . . . of such quality or quantity that a reasonable employee would find the conditions of [his] employment altered for the worse.'” Lewis, 246 F.Supp.3d at 989 (citing Patane, 508 F.3d at 113 (quoting Terry, 336 F.3d at 148)).
ii. Application
To support his claim for hostile work environment, Oliver alleges that Estwick and the DOE “disseminat[ed], facilitat[ed], and/or condon[e]d fabricated rumors that Oliver harbored “predatory” intentions toward TSMS students. SAC ¶ 57. Three alleged incidents prior to the arrest and subsequent disciplinary procedures on March 22, 2019 undergird this allegation. First, on November 14, 2012, Estwick addressed a “Counseling Letter” to Oliver's file in which he expressed “purported ‘concerns about the personal nature of [Oliver's] interactions with some of [his] students,'” although the letter did not cite any specific incidents. SAC ¶ 58. Second, in January 2017, a TSMS teacher told a student exhibiting signs of depression and abuse, T.S., that he was “concerned” about Oliver's relationship with T.S. and that the student should stop reaching out to Oliver. SAC ¶¶ 59-60. Third, on or around January 18, 2017, TSMS's then-guidance counselor “falsely told a foster care agency worker that Mr. Oliver harbored ‘predatory' intentions” toward T.S. and suggested that Oliver had made “improper advances” toward the student. SAC ¶ 61. These claims rely on Oliver's understanding of the word “predatory” being “consistent with the racial stereotyping of Black men as predators.” SAC ¶ 57. To support this claim, Oliver cites a scholarly publication in the Journal of Contemporary Criminal Justice, noting in its Abstract that “[t]he stereotyping of Blacks as criminals is so pervasive throughout society that ‘criminal predator' is used as a euphemism for ‘young Black male.' This common stereotype has erroneously served as a subtle rationale for the unofficial policy and practice of racial profiling by criminal justice practitioners.” SAC ¶ 57 n.2 (quoting Kelly Welch, Black Criminal Stereotypes and Racial Profiling, 23 J. CONTEMP. CRIM. JUSTICE 276 (2016), https://journals.sagepub.com/doi/abs/10.1177/1043986207306870).
Racist comments can constitute a hostile work environment, but there generally must be “more than a few isolated incidents of racial enmity.” Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (quoting Snell v. Suffolk Cnty., 782 F.2d 1094, 1103 (2d Cir. 1986)). “The Second Circuit has found a hostile work environment where there was evidence of a ‘stream of racially offensive comments,' including a ‘veritable barrage of racial epithets.'” Concey, 2011 WL 4549386, at *17 (quoting Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 70 (2d Cir. 2000)). Estwick's comments from 2012 regarding Oliver being an “affirmative action hire,” SAC ¶¶ 50-51, are therefore insufficient, even under a continuing violation claim, to state a claim for relief on their own.
Unlike discrete acts relevant to a discrimination claim, hostile environment claims by their very nature involve repeated conduct. See Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 42 (2d Cir. 2019) (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115 (2002)). Because such claims are based on the cumulative effect of individual acts rather than an incident that occurs on any particular day, a hostile work environment claim “will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period.” Davis-Garett, 921 F.3d at 42 (quoting Nat'l R.R. Passenger Corp., 536 U.S. at 122). Expiration of the limitations period is not a bar to using prior acts, such as statements by a decisionmaker or earlier decisions typifying retaliation involved, as background evidence in support of a timely claim. See, e.g., Davis-Garett, 921 F.3d at 42 (citing Nat'l R.R. Passenger Corp., 536 U.S. at 113; Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 176-77 (2d Cir. 2005)). Thus, while actions that occurred prior to Oliver's arrest on March 22, 2019 are largely barred from being raised as distinct claims on which to file suit, the context of Oliver's work environment can serve as “background evidence” in support of a hostile work environment claim. Id.
The allegations described above form exactly such “background evidence” that the Court can consider. As another court recently observed: “A reasonable person would likely find it ‘hostile or abusive' if his co-workers repeatedly implied that he was engaging in inappropriate sexual relations with his students.” Dash v. Bd. of Educ. of City Sch. Dist. of N.Y., 238 F.Supp.3d 375, 391 (E.D.N.Y. 2017) (cleaned up) (denying summary judgment on hostile work environment claim). “[A] single accusation can reasonably be viewed as having intolerably altered plaintiff's work environment, because it is deleterious to a school's environment when students are led to believe that a staff member is abusing his students.” Id.
Applying these principles and mindful that this assessment is being made solely on the pleadings, the Court concludes that Oliver has adequately pled a hostile work environment claim sufficient to survive a motion to dismiss.
d. Discrimination Under the NYCHRL
Discrimination claims under the NYCHRL must be interpreted independently and be more liberally construed to favor the plaintiff than in claims under Title VII, Section 1983, or the NYSHRL. N.Y.C. Local L. No. 85 of 2005 §§ 1, 7; see, e.g., Harris v. NYU Langone Med. Ctr., No. 12-CV-454 (RA) (JLC), 2013 WL 3487032, at *25 (S.D.N.Y. July 9, 2013) (“The NYCHRL should be broadly construed ‘in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.'”) (quoting Mihalik, 715 F.3d at 109), adopted as modified by 2013 WL 5425336 (Sept. 27, 2013); Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 31 (1st Dep't 2009). While federal and state law “may be used to aid in interpretation,” they should be considered “a floor below which the City's Human Rights law cannot fall.” N.Y.C. Local L. No. 85 of 2005 § 1.
Oliver has pled sufficient facts to state a claim for race discrimination and hostile work environment under Title VII, Section 1983, and the NYSHRL against Estwick. Similarly, and because the standard is even easier to meet, the motion to dismiss race discrimination and hostile work environment claims under the NYCHRL against Estwick should be denied as well. However, even under the broader pleading standard, the Second Circuit has cautioned that “district courts must be mindful that the NYCHRL is not a ‘general civility code”. . .[and] [t]he plaintiff still bears the burden of showing that the conduct is caused by a discriminatory motive.” Mihalik, 715 F.3d at 110 (quoting Williams, 872 N.Y.S.2d at 40). Because Oliver pled no facts demonstrating a discriminatory motive for the actions of Chan and Mustillo beyond bare conclusions, the discrimination and hostile work environment claims under the NYCHRL against those two individual defendants should be dismissed.
2. Retaliation
Defendants move to dismiss Oliver's retaliation claims against the DOE under Title VII, the NYSHRL, and the NYCHRL, and the retaliation claims against TSMS, Chan, Mustillo, and Estwick under § 1983, the NYSHRL, and the NYCHRL. Def. Mem. at 21-23. Because the standards for retaliation under § 1983 and the NYSHRL are the same, the Court may consider them together. See Marquez, 2021 WL 1226981, at *18. As to his retaliation claims, Oliver argues that the DOE Defendants subjected him to retaliation “because of his race and his previous attempts to rectify the discriminatory treatment that he has faced while working at TSMS.” Pl. Opp. Mem. at 2. He contends that the adverse employment actions he suffered-being reported to the NYPD, reassignment to the Rubber Room pending investigation, and the negative impacts that stem from that action including an uncommon email sent to TSMS parents about him-began to occur less than three months after he settled his previous lawsuit pertaining to race discrimination. See SAC ¶¶ 6-7. The Previous Action was settled on December 27, 2018. Id. ¶ 69. 85 days later, on March 22, 2019, Oliver was arrested and reassigned to the Rubber Room. Id. ¶ 109.
a. Legal Standard
The Title VII anti-retaliation provision prohibits an employer from discriminating against an employee or applicant “because he has opposed any practice made an unlawful employment practice . . . or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing. . . .” 42 U.S.C. § 2000e-3(a). The Second Circuit has “‘acknowledge[d] that there has been considerable confusion surrounding the viability of retaliation claims under § 1983 . . . [but has clarified that] under Vega, retaliation claims stemming from complaints of racial discrimination are actionable under the Equal Protection Clause pursuant to Section 1983.” Colon, 2021 WL 4427169, at *14 (quoting Vega, 801 F.3d at 80).
To establish a prima facie case of retaliation in violation of Title VII, a plaintiff must show: “(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse employment action; and (4) a causal connection between the protected activity and the adverse employment action.” Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010) (cleaned up). Allegations in a complaint need only give “plausible support to the reduced prima facie requirements that arise under McDonnell Douglas at the initial phase of a Title VII litigation.” Littlejohn, 795 F.3d at 316. Thus, to survive a motion to dismiss on a claim of retaliation, a plaintiff must allege in the complaint that “(1) defendants discriminated-or took an adverse employment action-against him, (2) because he has opposed any unlawful employment practice.” Vega, 801 F.3d at 90-91 (cleaned up).
b. Application
i. Protected Activity
Oliver claims that litigating, including settling, his previous legal action is protected activity for the purposes of a retaliation claim. SAC ¶ 69; Pl. Opp. Mem. at 23. Under Title VII, a plaintiff participates in a protected activity when he “oppose[s] any practice made an unlawful employment practice by [Title VII], or because [he] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII].” Colon v. City of New York, et al., No. 19-CV-10435 (PGG) (SLC), 2021 WL 4943552, at *18 (S.D.N.Y. Jan. 15, 2021) (cleaned up), adopted by 2021 WL 4427169 (Sept. 26, 2021). These are known as the “opposition” and “participation” clauses, either of which can constitute protected activity. See Littlejohn, 795 F.3d at 316 (quoting Townsend v. Benjamin Enters, Inc., 679 F.3d 41, 48 (2d Cir. 2012)). The participation clause “only encompasses participation in formal EEOC proceedings,” Littlejohn, 795 F.3d. at 316, not internal investigations, because its plain language requires that the investigation be “under” Title VII, “not merely integral to effectuating its purposes.” Townsend, 679 F.3d at 50-51. The Previous Action in this case is more akin to an EEOC proceeding than an internal investigation if the claims are specifically brought “under” Title VII. Oliver does not describe in the Second Amended Complaint the specific claims made in that lawsuit, or against whom they were brought, alleging only that it was “an action for employment and related complaints.” SAC ¶ 5. However, the Court can reasonably infer-as it is required to do on a motion to dismiss-that the action complained of was brought under Title VII as the nature of the claims concerned a “campaign of discrimination” related to employment and were followed thereafter by an EEOC complaint. SAC ¶ 5. Additionally, because this settlement took place between Oliver and the DOE Defendants, arising out of Oliver's alleged treatment at TSMS, the DOE necessarily was aware of the protected activity.
Further, as it is part of the litigation process, settlement of an action can reasonably be construed as a form of “participat[ing] in any manner” in a “proceeding.” Colon, 2021 WL 4943552, at *18. While Defendants cite Kim v. Columbia Univ., 460 Fed.Appx. 23, 25 (2d Cir. 2012) for the proposition that settlement of a lawsuit is “plainly not protected activity,” that case is distinguishable. Def. Rep. Mem. at 9. Affirming summary judgment in Kim, the Second Circuit confirmed that the period for temporal proximity between protected activity and adverse action is measured from the date of the employer's knowledge of the protected activity. There, a settlement of a claim in April 2007 followed by an adverse action in May 2007 was not sufficient for temporal proximity because the initial complaint leading up to the claim was filed 15 years prior, in 1992, and it was “coupled with the undisputed evidence” that the adverse action was similarly taken against 2,000 others. Kim, 460 Fed.Appx. at 25. No such compounding factor exists here. While courts in other districts cite Kim for the proposition that temporal proximity is measured from the date a previous lawsuit was filed rather than when it was settled, other courts have more recently used “pending” or “ongoing litigation” as a basis for finding adequate temporal proximity to find causation, undermining Defendants' assertion that the protected action ends the moment the Defendants become aware of a filed case. Compare Harper v. Brooklyn Children's Ctr., No. 12-CV-4545 (SJF) (GRB), 2014 WL 1154056, at *4 (E.D.N.Y. Mar. 20, 2014) (measuring from date previous lawsuit was filed) with Ahmad v. White Plains City Sch. Dist., No. 18-CV-3416 (KMK), 2020 WL 5720753, at *11 (S.D.N.Y. Sept. 24, 2020) (citing cases) (ongoing litigation sufficient to establish temporal proximity to find causation).
Other courts have not reached a consensus on this issue. See, e.g., Pediford-Aziz v. City of New York, 170 F.Supp.3d 480, 489 (E.D.N.Y Mar. 17, 2016) (finding that span of eight months between time plaintiff settled lawsuit and time she was prevented from coming to work was sufficient to establish temporal proximity). Oliver cites to McFarlane v. Harry's Nurses Registry, No. 17-CV-6350 (PKC) (PK), 2020 WL 1643781, at *14 (E.D.N.Y. Apr. 2, 2020) as persuasive authority giving rise to the possibility that a settlement can constitute protected activity. Pl. Opp. Mem. at 25. There, where the court denied summary judgment on plaintiffs' retaliation claims, plaintiffs had engaged in protected activity by “filing the Complaint in this matter . . . [and] previously threatening to file a lawsuit regarding wages, which led to a settlement with Defendants in or around December 2016.” McFarlane, 2020 WL 1643781, at *14. Defendants are correct that the McFarlane Court's holding is not, as Oliver alleges, that “settlement of a previously threatened lawsuit constitute[s] protected activity.” Def. Rep. Mem. at 10; Pl. Opp. Mem. at 25. However, the McFarlane court goes on to discuss the relevance of whether settlement took place in December 2015 or December 2016 to determine if discriminatory pay beginning in February 2016 was prior to or after the settlement for purposes of a temporal link between protected activity and the employment action. McFarlane, 2020 WL 1643781, at *14. This discussion demonstrates that the court in McFarlane implicitly recognized the settlement itself as the trigger of protected activity. Id. Similarly, here, settlement of a previous claim can constitute a protected activity for the purposes of a retaliation claim.
Oliver therefore participated in protected activity when he settled the Previous Action on December 27, 2018.
ii. Adverse Employment Action
The standard for finding an action “adverse” for the purposes of a retaliation claim is broader than that for a discrimination claim. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 53-54, 57, 67 (2006); Patane, 508 F.3d at 116. A plaintiff need only “show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Kessler v. Westchester Cty. Dep't of Soc. Servs., 461 F.3d 199, 207 (2d Cir. 2006) (quoting Burlington N. & Santa Fe Ry. Co., 548 U.S. at 68); see also Carpenter v. City of Mount Vernon, 198 F.Supp.3d 272, 283-84 (S.D.N.Y. 2016) (cleaned up). In the Second Circuit, “negative evaluation letters, express accusations of lying, assignment of lunchroom duty, reduction of class preparation periods, failure to process teacher's insurance forms, transfer from library to classroom teaching as an alleged demotion, and assignment to [a] classroom on [the] fifth floor which aggravated teacher's physical disabilities” may qualify as adverse employment actions for purposes of a retaliation claim. Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 226 (2d Cir. 2006) (cleaned up).
Here, because an adverse employment action took place for the purposes of a discrimination claim, see supra Section II(D)(1)(b)(i), it follows that Oliver suffered an adverse employment action under the even broader standard applied to retaliation claims. See Vale v. Great Neck Water Pollution Control Dist., 80 F.Supp.3d 426, 440 (E.D.N.Y. 2015) (actions were adverse employment actions under “more lenient standard” for retaliation claims when court previously concluded they qualified under “more demanding standard” for traditional discrimination claims).
While the Vale case made a determination as to adverse employment actions under the ADA, that court previously explained that it was applying the Title VII standard to ADA retaliation claims. Id. See also Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d 208, 223 (2d Cir. 2001) (analyzing retaliation claim under ADA using same framework employed in Title VII cases).
iii. Causal Connection
In order to state a claim for relief on a retaliation theory, “a plaintiff must plausibly plead a connection between the act and his engagement in protected activity.” Vega, 801 F.3d at 90 (citation omitted). A plaintiff can demonstrate a causal connection either “(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Littlejohn, 795 F.3d at 319 (quoting Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)). Oliver has not alleged any facts giving rise to the possibility of direct causal connection, but he has sufficiently pled facts alleging indirect causation through both temporal proximity and disparate treatment.
The period between Oliver's protected activity on December 27, 2018, and the adverse employment actions on March 22, 2019 (85 days) is less than three months, which Defendants contend falls within the time period that precludes an inference of retaliation. Def. Mem. at 23. However, in the Second Circuit, no “bright line [defines] 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.” Gorman-Bakos v. Cornell Co-op. Extension of Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001); see also Kim, 460 Fed.Appx. at 25 (“This court has not identified an outer limit beyond which a temporal relationship is too attenuated to support a finding of causality . . . [i]nstead, we exercise [our] judgment about the permissible inferences that can be drawn from temporal proximity in the context of particular cases.”) (cleaned up).
In addition to any alleged temporal proximity, circumstantial evidence demonstrates the plausibility of disparate treatment of fellow employees engaged in similar conduct. Oliver settled his previous action in December 2018, and less than three months later was accused by a student of inappropriate conduct. Accepting the alleged facts as true, the reaction to that accusation against Oliver, a Black teacher-alerting the NYPD, reassigning him to the Rubber Room, emailing TSMS parents, sending disciplinary letters, and more-was notably different than the reaction to similar accusations against white teachers as discussed in detail above. See, e.g. SAC ¶¶ 134-45. In addition, while the Court makes no conclusions on the subject on a motion to dismiss, it is plausible that the DOE Defendants disciplined Oliver so strongly after this accusation as it was the “earliest opportunity” to retaliate without raising suspicion. Ahmad, 2020 WL 5720753, at *11 (termination eight months after knowledge of plaintiff's lawsuit might have been “earliest opportunity” to retaliate when superintendent made proclamations over several months that he was seeking plaintiff's termination); see also Cronin v. St. Lawrence, No. 08-CV-6346 (KMK), 2009 WL 2391861 (S.D.N.Y. Aug. 5, 2009) (passage of eleven months “at least in the range of acceptable time periods” for retaliation, “particularly if Defendant had no earlier opportunity”) (collecting cases).
Drawing all reasonable inferences in Oliver's favor, the combination of temporal proximity between the settlement of the Previous Action as well as allegations of differential treatment of Oliver as compared to similarly situated white teachers sufficiently indicates a causal connection at this “early stage” in the proceedings to survive a motion to dismiss. Ahmad, 2020 WL 5720753, at * 11.
c. Retaliation Under the NYCHRL
Under the NYCHRL, the retaliation inquiry is even broader. See, e.g., Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 723 (2d Cir. 2010). Retaliation in any manner is prohibited under the NYCHRL, and “[t]he retaliation . . . need not result in an ultimate action with respect to employment . . . or in a materially adverse change in the terms and conditions of employment.'” Id. (citing N.Y. City Admin. Code § 8-107(7)). The elements required to assert a prima facie claim of retaliation under the NYCHRL are identical to the elements under analogous federal law, “except that the plaintiff need not prove any ‘adverse' employment action; instead, he must prove that something happened ‘that would be reasonably likely to deter a person from engaging in protected activity.'” Jimenez v. City of New York, 605 F.Supp.2d 485, 528 (S.D.N.Y. 2009) (citing N.Y. City Admin. Code § 8-107(7)).
Because the motion to dismiss the various retaliation claims under federal law should be denied, the same result is warranted with respect to the various retaliation claims under the NYCHRL.
3. Personal Involvement of Individual Defendants
The claims against TSMS should be dismissed, as it is not a proper party to the case. “[U]nder New York law, departments that are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality, and therefore, cannot sue or be sued.” Estate of M.D. by DeCosmo v. New York, 241 F.Supp.3d 413, 422 (S.D.N.Y. 2017) (quoting Davis v. Lynbrook Police Dep't, 224 F.Supp.2d 43, 477 (E.D.N.Y. 2002). Pursuant to this doctrine, schools like TSMS do not have a “legal identity separate from their school district.” Z.F.X. by Vankesteren v. Riverhead Central School District, No. 20-CV-962 (GRB) (ST), 2021 WL 1238842, at *2 (E.D.N.Y. Apr. 2, 2021). TSMS as an entity is therefore neither an individual defendant nor a school district operating a public school with the possibility of Monell liability, and as such is not a proper defendant under Section 1983 or NYSHRL claims.
The individual Defendants-Chan, Mustillo, and Estwick-each acted under color of state law in their interactions with Oliver because they were public employees in their official capacities as DOE employees exercising their responsibilities pursuant to state law. See Feingold, 366 F.3d at 159. However, “[a]n individual may be held liable under . . . § 1983 only if that individual is ‘personally involved in the alleged deprivation.'” Marquez, 2021 WL 1226981, at * 8 (quoting Littlejohn, 795 F.3d at 314). The NYSHRL and NYCHRL “also require personal involvement” in order to hold an individual defendant personally liable for an act of discrimination. Lewis, 2017 WL 1169647, at *8. This standard requires a plaintiff to establish that the supervisor's actions were the “proximate cause” of the deprivation, and that the supervisor's behavior amounted to “intentional discrimination on the basis of a protected characteristic ....” Littlejohn, 795 F.3d at 314 (cleaned up).
On a § 1983 claim, a supervisor's personal involvement may be demonstrated by a plaintiff in four different ways:
(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. (citing Back v. Hastings On Hudson Union Free School Dist., 365 F.3d 107, 127 (2d Cir. 2004).
Chan, Mustillo, and Estwick can all be characterized as Oliver's supervisors. In her role as Superintendent, Chan “oversees hiring, supervising, and development of principals, as well as teacher promotion decisions,” and in her role as Deputy Community Superintendent, Mustillo “is responsible for assisting [Chan],” specifically “in implementing policies . . . related to teacher conduct and . . . overseeing [the] response to any reports of suspected abuse of District 1 students.” SAC ¶¶ 42-43. As principal of TSMS, Estwick “is responsible for all aspects of running [TSMS], including . . . evaluation and professional development of teaching staff.” SAC ¶ 43.
However, Oliver's claims against Chan, even though alleged against her in her official capacity, are not sufficient to demonstrate personal involvement. Oliver pleads no facts in the Second Amended Complaint referring to Chan's involvement in any of the actions giving rise to his discrimination and retaliation claims. He alleges only in a conclusory manner that Chan was “aware of the discrimination” Oliver suffered, but “did nothing to prevent” Estwick or the school from engaging in further discrimination. SAC ¶ 72. Oliver then states that Chan was one of the individuals who met with G.C.'s parents at TSMS the morning of March 22, 2019 following the incident and claims that the NYPD decided to arrest him with Chan's “encouragement,” although he fails to allege any factual basis for this assertion. SAC ¶ 78. Even drawing all reasonable inferences in Oliver's favor as required at this stage of the case, the only constitutional deprivation with which Chan is remotely involved as pled in the Second Amended Complaint is Oliver's purported false arrest, which was allegedly committed by the NYPD and not by Chan, her subordinates, or anyone beholden to an alleged policy she created or allowed to continue. See SAC ¶¶ 77-80.
Mustillo is alleged to have been involved in the investigation and disciplinary actions that followed Oliver's return to TSMS after he was sent to the Rubber Room in 2019. SAC ¶ 121. Oliver met with her on June 11, 2019, at which time she gave him a copy of an investigative report regarding G.C.'s accusations against him. SAC ¶ 122. Oliver claims Mustillo found credible what he deems to be “false accusations” with no evidence in the report. SAC ¶ 126. According to Oliver, the accusations are false because he denied them and because those who conducted the investigation interviewed other students all at one time rather than individually. SAC ¶¶ 126-29. On these facts, Oliver asserts that Mustillo adopted as true the accusations in her June 17, 2019 disciplinary letter to him “based on a racist view of Black men as predators.” SAC ¶¶ 131-32. However, Oliver has alleged no facts leading to this conclusion.
On the other hand, Estwick was personally involved in Oliver's arrest (engaging with G.C. after the accusations and leading Oliver to the NYPD, SAC ¶¶ 73-79) and the disciplinary action taken against Oliver (his reassignment to the Rubber Room and the notification to TSMS parents, SAC ¶¶ 109, 112). As pleaded in the SAC, Estwick also supervised White Teachers Nos. 1-3, Oliver's alleged comparators. SAC ¶¶ 138, 142, 145. Neither Mustillo nor Chan are specifically alleged to have been involved in the disciplinary decisions against those teachers, and as such Oliver has not pled that they had any intent to discriminate.
Even accepting all reasonable inferences as true at the pleadings stage, while Oliver has alleged sufficient facts to support a claim against Estwick for violating his constitutional right to be free from race discrimination, a hostile work environment, and retaliation, he has not done so against Chan and Mustillo. Accordingly, the motion to dismiss the discrimination, hostile work environment, and retaliation claims under Section 1983 and NYSHRL against TSMS, Chan, and Mustillo should be granted, but should be denied with respect to the claims against Estwick. The claims against the DOE are discussed further infra at Section II(D)(4)(b).
4. Derivative Claims
The DOE Defendants move to dismiss Oliver's derivative claims, including the claims for supervisory responsibility, respondeat superior, and municipal Monell liability. Def. Mem. at 24, 33-38. In the following subsections, the Court will examine each of these issues.
a. Supervisory Liability and Respondeat Superior
Defendants move to dismiss Oliver's supervisory liability claims against Chan and Mustillo, and respondeat superior liability claims against the DOE. Def. Mem. at 33-35. Because Oliver has adequately pled claims for discrimination, hostile work environment, and retaliation against Estwick, the claims are not without merit solely on the grounds of failing to plead an underlying violation.
As to federal law violations, “‘supervisors cannot be held liable based solely on the alleged misconduct of their subordinates.'” See supra Section II(C)(4); Vasquez, 2017 WL 946306, at *11 (quoting Lindsey, 43 F.Supp.3d at 329). “[A] municipality cannot be held liable under § 1983 on a respondeat superior theory,” Monell, 436 U.S. at 691, nor “solely because it employs a tortfeasor.” Lawton, 2017 WL 3582473, at *6 (quoting Bisignano, 113 F.Supp.2d at 601). Oliver's claims on these bases fail as a matter of law, and therefore the motion to dismiss supervisory liability claims against Chan and Mustillo and respondeat superior against the DOE on federal law grounds should be granted.
However, Oliver pleads state law claims under the NYSHRL and NYCHRL as well. “[U]nlike cases brought under § 1983, municipalities may be liable for the common law torts . . . committed by their employees under the doctrine of respondeat superior.” Mesa, 2013 WL 31002, at *34 (cleaned up). Specifically with regard to the NYCHRL, an “employer shall be liable for an unlawful discriminatory practice based upon the conduct of an employee or agent which is in violation of [the relevant provisions] of this section [ ] where . . . the employee or agent exercised managerial or supervisory responsibility.” Pollock v. Shea, No. 20-CV-6273 (JGK), 2021 WL 4962736, at *7 (S.D.N.Y Oct. 26, 2021) (citing N.Y.C. Admin. Code § 8-107(13)(b)). Oliver adequately pled that the DOE employed Estwick and that Chan and Mustillo were his supervisors during the time of the alleged violations. SAC ¶¶ 40-43.
Thus, the motion to dismiss claims for supervisory liability against Chan and Mustillo and for respondeat superior against the DOE on state law grounds should be denied.
b. Municipal Liability
As described above, a municipality may be liable under Section 1983 if “the governmental body itself subjects a person to a deprivation of rights or causes a person to be subjected to such deprivation.” Connick, 563 U.S. at 60 (internal quotation marks omitted). It is only “when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.” Monell, 436 U.S. at 694.
Here, Oliver alleges a failure by policymakers to provide adequate training or supervision to such an extent that it amounts to deliberate indifference to the rights of those who come in contact with municipal employees. See Davis, 2018 WL 10070540, at *4; supra Section II(A)(3). In his effort to establish Monell liability, Oliver claims that the DOE “knew to a moral certainty that [Estwick] had a history of mishandling situations” involving Oliver and therefore its “failure to supervise and discipline Estwick constituted a de facto policy or custom that exhibited deliberate indifference to [Oliver]'s constitutional rights,” causing his rights to be violated. SAC ¶¶ 223, 225. Oliver alleges that this failure to adequately supervise rises to the level of “deliberate indifference.” SAC ¶ 223, Pl. Opp. Mem. at 25-26.
“A school district may be held liable for inadequate training, supervision or hiring where the failure to train, hire or supervise amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact.” Martinetti v. Mangan, No. 17-CV-5484 (KMK), 2019 WL 1255955, at *9 (S.D.N.Y. Mar. 19, 2019) (cleaned up). To establish liability premised on a failure to supervise, the plaintiff must plead both (1) “a pattern of allegations of or complaints about, or a pattern of actual, similar unconstitutional activity”; and (2) that “the municipality consistently failed to investigate those allegations.” Treadwell v. Cnty. of Putnam, No. 14-CV-10137 (KMK), 2016 WL 1268279, at *4 (S.D.N.Y. Mar. 30, 2016).
The number of legal actions Oliver previously took - including the Previous Action, the OEO complaint, the arbitration proceeding, and the EEOC complaint -demonstrates a pattern of complaints of unconstitutional activity. Treadwell, 2016 WL 1268279, at *4. Further, unlike in Martinetti (where plaintiff did not allege that any prior investigations were “unreasonably performed” or identify any policymakers involved in the investigation or otherwise on notice for insufficient policies or training), Oliver does make allegations of a consistent failure to investigate complaints. Martinetti, 2019 WL 1255955, at *10. Oliver claims that Estwick “faced no disciplinary action” following the conclusion of the Arbitration Proceeding in 2014 at which Oliver allegedly prevailed, and further that the OEO took “no action” for three years on Oliver's complaint despite those kinds of complaints being “typically closed within 90 days of the filing.” SAC ¶¶ 53-55. Based on these allegations, policymakers plausibly would have been “on notice” that Estwick was alleged to have been mishandling incidents involving Oliver, thus indicating they were “aware of any alleged . . . deficiencies.” Martinetti, 2019 WL 1255955, at *9. For the purposes of surviving a motion to dismiss, Oliver has therefore alleged sufficient facts to “support an inference” that the municipality failed to supervise Estwick in his treatment of Oliver in the course of his working at TSMS. Treadwell, 2016 WL 1268279, at *4.
Thus, the motion to dismiss the municipal liability claim against the DOE should be denied.
5. Summary of Claims Against the DOE Defendants
In sum, the Court recommends the motion be granted as to:
1. The various Race Discrimination, Hostile Work Environment, and Retaliation Claims against DOE, Chan, Mustillo, and TSMS (Eighth through Thirteenth, and Sixteenth through Twenty-First Claims);
2. The Supervisory Liability claims against Chan and Mustillo on federal law grounds (Fifteenth Claim); and
3. The Respondeat Superior claims against the DOE on federal law grounds (Twenty-Second Claim).
The Court recommends the motion be denied as to:
1. The Race Discrimination, Hostile Work Environment, and Retaliation Claims against Estwick (Eighth through Thirteenth, and Sixteenth through Twenty-First Claims);
2. The Supervisory Liability claims against Chan and Mustillo under NYSHRL and NYCHRL (Twenty-Second Claim);
3. The Respondeat Superior claims against the DOE under NYSHRL and NYCHRL (Twenty-Second Claim); and
4. The Municipal Liability claim against the DOE (Fourteenth Claim).
III. CONCLUSION
For the foregoing reasons, the Court recommends the motion to dismiss the Second Amended Complaint be granted as to these claims:
1. The False Arrest/Arrest without Probable Cause federal law claims against Shea, O'Connell, and Gonzalez;
2. The New York State Constitution claims against Shea, O'Connell Gonzalez, Taylor, and the Five Unknown NYPD Officers;
3. The Supervisory Liability claims against O'Connell and Shea;
4. The Respondeat Superior claims against the City of New York;
5. The Monell Liability claim against the City of New York;
6. The various Race Discrimination, Hostile Work Environment, and Retaliation Claims against DOE, Chan, Mustillo, and TSMS;
7. The Supervisory Liability claims against Chan and Mustillo on federal law grounds; and
8. The Respondeat Superior claims against the DOE on federal law grounds.
The Court recommends the motion be denied as to these claims:
1. The False Arrest/Arrest without Probable Cause federal law claims against Taylor and the Five Unknown NYPD Officers;
2. The Supervisory Liability claim against Gonzalez;
3. The various Race Discrimination, Hostile Work Environment, and Retaliation Claims against Estwick;
4. The Supervisory Liability claims against Chan and Mustillo under NYSHRL and NYCHRL;
5. The Respondeat Superior claims against the DOE under NYSHRL and NYCHRL; and
6. The Monell Liability claim against the DOE.
PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Paul G. Gardephe, United States Courthouse, 500 Pearl Street, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Gardephe. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham. Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72.