Opinion
1:22-cv-10891 (PGG) (SDA)
01-24-2024
Shreedevi Vora, Plaintiff, v. New York City Department of Education et al., Defendants.
TO THE HONORABLE PAUL G. GARDEPHE, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
Pro se plaintiff Shreedevi Vora (“Plaintiff” or “Vora”) brings this action alleging race, national origin and disability discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981 (“§ 1981”); the Americans with Disabilities Act of 1990 (the “ADA”), 42 U.S.C. § 12101 et seq.; the Rehabilitation Act of 1973 (the “Rehabilitation Act”), 29 U.S.C. § 701 et seq.; the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq.; and the New Yok City Human Rights Law (“NYCHRL”), N.Y. City Admin. Code § 8-101 et seq. (Compl., ECF No. 1, at p. 4.)
Presently before the Court are motions by defendants New York City Department of Education (“DOE”) and Kristin Erickson and Paul Rotondo (together, the “Individual Defendants” and, collectively with the DOE, the “Defendants”), pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the Complaint for failure to state a claim. (DOE Mot., ECF No. 14; Indiv. Defs.' Mot., ECF No. 28.) For the reasons set forth below, I respectfully recommend that Defendants' motions be GRANTED and that Plaintiff be given leave to amend.
For purposes of the pending motions to dismiss, the Court accepts Plaintiff's factual allegations as true and draws all reasonable inferences in her favor. See City of Providence v. Bats Glob. Mkts., Inc., 878 F.3d 36, 48 (2d Cir. 2017).
Vora has been employed by the DOE as a biology and science teacher since 2003 and has been teaching at the Manhattan Comprehensive Night and Day High School (“MCNDHS”) since September 2008. (Compl., ECF No. 1, ¶ 1.) Vora identifies as South Asian Indian and, in or around 2014, was diagnosed with generalized anxiety disorder. (Id. ¶ 2.)
In February 2020, Principal Erikson, then an Assistant Principal, filed corporal punishment allegations against Vora. (Compl. ¶ 4.) Those allegations ultimately were dismissed by the DOE as unfounded. (Id.)
On October 22, 2021, during a “school culture preservation meeting” with David DiPadova, the United Federation of Teachers (“UFT”) Chapter Leader for MCNDHS, Vora learned from another teacher of color, Clay Davis, that he had been reprimanded and summoned to a disciplinary hearing for stepping into the laboratory preparation area adjacent to the science classroom while covering a class for an absent teacher. (Comp. ¶ 4.) Learning about Davis's disciplinary summons “triggered” Vora, who saw it as another example of a teacher of color “receiv[ing] punishment for a situation that warranted conversation[.]” (Id.) The same day, Vora “revealed” to DiPadova that Principal Erickson's behavior had been targeted towards teachers of color and was punitive in nature. (Id. ¶ 15; see also id. ¶¶ 9, 16.)
On October 26, 2021, Principal Erikson visited Vora's ICT Living Environment class, which Vora co-taught with Travis Morin, for an informal, unannounced observation. (Compl. ¶ 5.) Prior to the visit, Morin had been sick with an illness that prevented him from speaking for three weeks. (Id.) During that time, Vora taught the class without his support in class or with lesson plans. (Id.) The week of October 26, Morin's voice was back and Vora and Morin agreed that he would lead the class. (Id.) Principal Erikson rated Vora mostly ineffective on the observation while Morin received positive ratings. (Id.) Previously, Vora consistently had received satisfactory, highly effective, and effective ratings in different domains during observations. (Id. ¶ 3.)
An ICT classroom refers to an integrated co-teaching program containing both special and general education students. (See DOE Mem., ECF No. 15, at 3 n.3.)
In a post-observation meeting the following day, Vora explained to Principal Erickson the situation regarding Morin's voice loss and that she had modified her lesson plan to allow Morin to lead an activity that he was comfortable with to help him get re-adjusted to the classroom. (Compl. ¶ 6.) Vora asked Principal Erickson not to write an observation report for her since she was not meant to teach during that period. (Id.) Principal Erikson previously had stated that if she was observing a class that did not go well, she would not write a report and would observe the class another time. (Id.) However, Principal Erickson insisted that she would write the report rating Vora “ineffective” in most domains. (Id.) Principal Erickson also recommended that Vora observe other ICT co-teaching models and work with special education Assistant Principal (“AP”) Raquel Hernandez on a weekly basis for special education ICT models and strategies. (Id. ¶ 7.) Vora informed Principal Erickson that she was uncomfortable working with AP Hernandez because AP Hernandez had asked Vora “to sign inaccurate language for students' [individual education plans] . . . including modifying lesson plans for students with disabilities[,]” even though Vora did not have the appropriate licensing to do so. (Id.) AP Hernandez had, on another occasion, yelled at Vora in front of students. (Id.)
Following the October 27, 2021 meeting with Principal Erickson, Vora received emails from AP Hernandez pressuring Vora to meet with her during Vora's only preparation period and her lunch period. (Compl. ¶ 8.) UFT District Representative Patricia Crispino informed Vora that, in accordance with her UFT contract, no meetings were to be conducted, mandated or recommended during a teacher's preparation and lunch periods. (Id. ¶¶ 8, 11.) Vora told AP Hernandez, as she had told Principal Erickson, that she “needed a different kind of support” because the constant emailing was stressful, she felt pressured “to do things that seemed out of the bounds of what professional ethics require[d]” and the tone of AP Hernandez's emails was causing her a lot of anxiety. (Id. ¶ 8.)
On November 1, 2021, Vora filed a complaint with the UFT regarding the classroom observation. (Compl. ¶ 10.) However, she did not submit the complaint to Principal Erickson within the required five-day period and, therefore, the UFT could not proceed with the complaint. (Id.) On November 18, 2021, Vora asked District Representative Crispino to contact Principal Erickson for a three-way meeting to request that Principal Erickson consider removing the observation report from Vora's file and giving her “the support that [she] had requested to teach the ICT class.” (Id. ¶ 11.) Vora had learned from UFT District Representatives that Principal Erickson violated observation policies when she observed and rated both Vora and Morin at the same time. (Id.) District Representative Crispino reached out to Principal Erickson to request a three-way meeting, but Principal Erickson refused to meet. (Id.)
On December 16, 2021, Vora let the school know she would be absent because she was having symptoms of COVID-19. (Compl. ¶ 12.) Vora also sent an email outlining what was needed for each period she would be missing for the next two days. (Id.) AP Hernandez replied with a “sarcastic and hostile” response, copying all the other administrators in the school, and demanding that Vora be more specific. (Id.) Vora previously had used the same email format without any feedback and Morin also had used a similar format. (Id.) After Vora pointed out that faculty had never been required to follow a format for reporting absences, Principal Erickson sent an email to the entire faculty regarding an “absent” e-mail format. (Id.)
Vora experienced targeted behavior for requesting more personal protective equipment and spacing for in-person meetings due to COVID-19. (Compl. ¶¶ 13-14.) For example, in September 2021, Vora suggested that teachers should have Zoom in their classrooms instead of having faculty meetings in the auditorium. (Id. ¶ 14.) Principal Erickson insisted on in-person meetings so Vora, who was extra cautious, sat by the window “to stay within the airflow.” (Id.) Then, in December 2021, when the Omicron variant of COVID-19 was circulating, that window was blocked by SMART boards with no reason given for why airflow was being restricted. (Id.) Vora alleges that this action was targeted towards her. (See id.)
On or about January 6, 2022, Vora retained an attorney to send a letter to retired Superintendent of Transfer High Schools, Paul Rotondo, regarding the observation by Principal Erickson on October 26, 2021. (Compl. ¶ 17.) On January 19, 2022, Superintendent Rotondo invited Vora to a Zoom conference and sent her a resolution letter informing her that the observation would be removed from her file, but she would have to continue co-teaching the Living Environment class. (Id. ¶ 18.) On or about February 28, 2022, Vora's attorney sent a follow- up letter to Superintendent Rotondo because Principal Erickson was not adhering to some of the terms of Superintendent Rotondo's resolution. (Id. ¶ 19.)
On March 4, 2022, Superintendent Rotondo issued a second resolution letter granting Vora a disability-based accommodation, based on a letter from Vora's psychiatrist, assuring Vora that she would be directly supervised by, and work collaboratively with, Assistant Principal of Math and Science, Jimyung Nam. (Compl. ¶ 20.) Shortly after Superintendent Rotondo issued the second resolution letter, Principal Erickson hired a fifth Assistant Principal, Lafleur King, an English teacher, and put AP King in charge of supervising Vora. (Id. ¶ 21.) Vora alleges that this was in retaliation for an email she sent on March 23, 2022 to Superintendent Rotondo, Principal Erickson and others, informing them that she was concerned that a fifth administrator had been hired at MCNDHS; that academic departments in the school had been eliminated; and that the school had been reorganized suddenly and non-transparently. (Id. ¶ 22.)
Principal Erickson, former Superintendent Rotondo, current Superintendent John Sullivan and DOE Legal Counsel Lisa Becker requested that Vora undergo a mental fitness examination due to absences, some lateness and exacerbation of her anxiety. (Compl. ¶ 23.) On May 9, 2022, a DOE medical doctor declared Vora fit for duty and she was cleared to return to work. (Id. ¶ 25.)
On June 10, 2022, Vora dually filed a charge of discrimination with the New York State Division of Human Rights (“SDHR”) and the United States Equal Employment Opportunity Commission (“EEOC”). (See Pl.'s Opp. Mem., ECF No. 36, at 10; see also Compl. at PDF pp. 1421.) On June 22, 2022, Vora sent her resume and application to Principal Erickson for a Dean's position, but Principal Erickson did not acknowledge her application. (Compl. ¶ 26.) As of December 24, 2022, the date she filed her Complaint in this action, Vora still was being supervised by AP King and was concerned that her end of the year rating would be retaliatory. (Id. ¶ 24.)
Although plaintiff is proceeding pro se, she notes that she received legal assistance in drafting her opposition memorandum. (See Pl.'s Opp. Mem. at 1 n.1.)
LEGAL STANDARDS ON MOTION TO DISMISS
A defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
In deciding a motion to dismiss, the Court “must accept as true all of the allegations contained in a complaint[,]” but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). “Determining whether a complaint states a plausible claim . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679 (citation omitted).
Where, as here, a plaintiff is proceeding Pro se, the Court must be mindful that the plaintiff's pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Complaints filed by Pro se litigants “must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (internal quotation marks omitted) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)). Nevertheless, a Pro se plaintiff “must still plead enough facts to state a claim to relief that is plausible on its face.” Owens v. City of New York, No. 14-CV-00966 (KBF), 2015 WL 715841, at *1 (S.D.N.Y. Feb. 19, 2015) (citing Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)). Moreover, Pro se plaintiffs “cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a ‘right to relief above the speculative level.'” Jackson v. NYS Dep't of Labor, 709 F.Supp.2d 218, 224 (S.D.N.Y. 2010) (quoting Twombly, 550 U.S. at 555).
“In determining the adequacy of a claim under Rule 12(b)(6), a court is generally limited to ‘facts stated on the face of the complaint,' ‘documents appended to the complaint or incorporated in the complaint by reference,' and ‘matters of which judicial notice may be taken.'” Zoulas v. New York City Dep't of Educ., 400 F.Supp.3d 25, 48 (S.D.N.Y. 2019) (quoting Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016)). “For a document to be integral to a complaint, the plaintiff must have (1) actual notice of the extraneous information and (2) relied upon the documents in framing the complaint.'” Id. (internal quotation marks and alterations omitted); see also Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002). “While the Court must accept the facts as alleged in the complaint, when any allegations contradict the evidence contained in the documents relied upon by a plaintiff, the documents control, and the Court need not accept the allegations contained within the complaint as true.” Id.
DISCUSSION
Defendants argue that Plaintiff's § 1981 claim should be dismissed because there is no private right of action against state actors; that Plaintiff's NYSHRL and NYCHRL claims should be dismissed for failure to timely file a notice of claim; that Plaintiff failed to exhaust administrative remedies regarding her Title VII and ADA claims; that Plaintiff's claims are partially time-barred; and that the Complaint fails to state a claim. (DOE Mem. at 6-19; Indiv. Defs.' Mem., ECF No. 29, at 7-22.) The Individual Defendants move to dismiss on the additional ground that there is no individual liability under Title VII, the ADA or the Rehabilitation Act and that Principal Erickson is not an employer under the NYSHRL. (Indiv. Defs.' Mem. at 6-7.) The Court first considers Defendants' arguments with respect to Plaintiff's federal law claims and then turns to Plaintiff's claims under the NYSHRL and NYCHRL.
I. Plaintiff's Claims Under § 1981
Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State . . . to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” 42 U.S.C. § 1981. “[Section] 1981 does not provide a separate private right of action against state actors.” Duplan v. City of New York, 888 F.3d 612, 621 (2d Cir. 2018). Rather, “the express cause of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units.” Id. at 619 (emphasis omitted). Defendants argue that Plaintiff's § 1981 claims should be dismissed on this basis. (DOE Mem. at 6; Indiv. Defs.' Mem. at 7.) However, as Plaintiff correctly points out (see Pl.'s Opp. Mem. at 9), courts in this Circuit routinely construe claims brought under § 1981 as arising under § 1983 and the Second Circuit has made clear that “plaintiffs need not invoke § 1983 expressly in order to state a claim, so long as they plead facts that plausibly indicate liability.” Quinones v. City of Binghamton, 997 F.3d 461, 468 n.4 (2d Cir. 2021) (construing § 1981 claim as claim under § 1983); see also In re New York City Dep't of Educ., No. 15-CV-07150 (AJN), 2019 WL 1433163, at *5 (S.D.N.Y. Mar. 29, 2019) (following Duplan, courts “construe § 1981 claims as causes of action brought under brought under § 1983 and discuss whether the claims can survive pursuant to § 1983 caselaw”) (citing cases); Nnebe v. City of New York, No. 22-CV-03860 (VEC) (SLC), 2023 WL 2393920, at *8 (S.D.N.Y. Jan. 30, 2023), report and recommendation adopted, 2023 WL 2088526 (S.D.N.Y. Feb. 17, 2023) (construing § 1981 claim as § 1983 claim). Thus, the Court will construe Plaintiff's claims as arising under § 1983 and recommends that Plaintiff be given leave to amend to add a citation to § 1983. See In re New York City Dep't of Educ., 2019 WL 1433163, at *6.
“Section 1983 grants a right of action to any ‘citizen of the United States or other person within the jurisdiction thereof' who has been deprived of ‘any rights, privileges, or immunities secured by the Constitution' or federal law by a person acting under color of state law.” Nnebe, 2023 WL 2393920, at *8 (quoting 42 U.S.C. § 1983). “The Fourteenth Amendment, as made actionable by 42 U.S.C. § 1983, ‘provides public employees with the right to be free from discrimination.'” Buon v. Spindler, 65 F.4th 64, 78 (2d Cir. 2023) (quoting Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015)).
A plaintiff suing a municipality under § 1983, or a municipal employee in his or her official capacity, “must plausibly allege the existence of a municipal policy, custom, or practice that caused the claimed civil rights violation.” Combier v. Portelos, 788 Fed.Appx. 774, 778 (2d Cir. 2019) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 692-94 (1978)); see also Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004) (citing Hafer v. Melo, 502 U.S. 21, 25 (1991) (claim against a municipal employee in official capacity deemed brought against municipality itself)).
Plaintiff has not plausibly alleged a § 1983 against the DOE, or against Principal Erickson or Superintendent Rotondo in their official capacities, as she has not identified a municipal policy, custom or practice that allegedly caused the discrimination. See Green v. Dep't of Educ. of City of New York, 16 F.4th 1070, 1077 (2d Cir. 2021) (affirming dismissal of § 1983 claim when plaintiff did not allege existence of formal policy of retaliation or disparate treatment; allegation that DOE targeted African-American male teachers engaged in certain speech too conclusory to plausibly allege official policy or custom); Nnebe, 2023 WL 2393920, at *18 (dismissing § 1983 claim against DOE and school principal and assistant principal in their official capacities when complaint did not identify municipal policy that allegedly caused constitutional violation).
“In order to establish individual liability under § 1983, a plaintiff must show (a) that the defendant is a ‘person' acting ‘under the color of state law,' and (b) that the defendant caused the plaintiff to be deprived of a federal right.” In re New York City Dep't of Educ., 2019 WL 1433163, at *6 (quoting Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004)). “[S]tate employment is generally sufficient to render the defendant a state actor[.]” Id. (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n.18 (1982)); see also id. (“no doubt” defendant acted under color of state law when he was DOE employee). “Once the color of law requirement is met, a plaintiff's equal protection claim parallels [her] Title VII claim, except that a § 1983 claim, unlike a Title VII claim, can be brought against an individual.” Buon, 65 F.4th at 78. Accordingly, the Court analyzes these claims in conjunction with Plaintiff's Title VII claims against the DOE in Section II below (and, as set forth below, recommends that the claims be dismissed with leave to amend).
II. Race/National Origin Discrimination Claims Under Title VII/Section 1983
Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise 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). “[individuals are not subject to liability under Title VII.” Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000).
“[T]o properly assert a claim of discrimination against an employer under Title VII, a plaintiff must ‘allege two elements: (1) the employer discriminated against [her] (2) because of [her] race, color, religion, sex, or national origin.'” Buon, 65 F.4th at 78 (quoting Vega, 801 F.3d at 85); see also Gonzalez v. City of New York, 377 F.Supp.3d 273, 288-89 (S.D.N.Y. 2019) (setting forth same two elements for discrimination claim under § 1983). “[A]n action is ‘because of' a plaintiff's race, color, religion, sex, or national origin where it was a ‘substantial' or ‘motivating' factor contributing to the employer's decision to take the action.” Vega, 801 F.3d at 85 (internal citation omitted).
Plaintiff alleges race and national origin discrimination claims based on disparate treatment and hostile work environment, as well as retaliation claims. (Compl. at PDF pp. 3, 5.) Plaintiff does not dispute that the Individual Defendants are not liable under Title VII. (Pl.'s Opp. Mem. at 8.) However, as set forth above, the Court construes the Complaint as alleging parallel claims against the Individual Defendants under § 1983.
A. Disparate Treatment
Plaintiff alleges disparate treatment claims based on her race/national origin because she was denied training, i.e., she was required to teach a special education co-teaching class for which she had been offered no professional development and little to no preparation time with the coteacher; she was given a negative performance review (the October 26, 2021 observation); and she was denied a Dean's position. (Compl. ¶¶ 5-6, 23, 26; see also Pl.'s Opp. Mem. at 15-17.)
To the extent that Plaintiff purports to assert a disparate treatment claim based on Principal Erickson's filing of corporal punishment allegations against her in February 2020 (Compl. ¶ 6), the Court agrees with Defendants (see DOE Mem. at 9; Indiv. Defs.' Mem. at 10-11) that such claim would be time-barred under Title VII. See Buon, 65 F.4th at 77 (“An employment discrimination claim must be filed with the EEOC within 300 days of the alleged discrimination in a state, like New York, with a fair employment agency.”) (internal citations omitted). However, as Plaintiff argues, she may use prior acts as background evidence for timely claims. See Zoulas v. New York City Dep't of Educ., 400 F.Supp.3d 25, 50 (S.D.N.Y. 2019) (“Nevertheless, ‘even with respect to a claim of discrete discriminatory or retaliatory acts, expiration of the limitations period does not bar ‘an employee from using the prior acts as background evidence in support of a timely claim.'”) (quoting Davis-Garett v. Urban Outfitters, Inc., 921 F.3d 30, 42 (2d Cir. 2019)). Moreover, Plaintiff is not barred from asserting that actions that occurred before the 300-day period contributed to her hostile work environment claim. See Zoulas, 400 F.Supp.3d at 51. Significantly, however, this determination does not affect Plaintiff's ability to pursue these allegations as part of a § 1983 claim for disparate treatment “because there is no exhaustion requirement under Section 1983[,]” Buon, 65 F.4th at 78 n.6 (citing Gresham v. Chambers, 501 F.2d 687, 690-91 (2d Cir. 1974)), and the statute of limitations for § 1983 actions arising in New York is three years. See Lucente v. Cnty. of Suffolk, 980 F.3d 284, 308 (2d Cir. 2020). In any event, Plaintiff does not appear to be asserting a separate disparate claim, but rather argues that this incident contributed to her hostile work environment claims. (See Pl.'s Opp. Mem. at 15-16, 22-23.)
For Plaintiff's disparate treatment claims to survive a motion to dismiss, she must plausibly allege that she: “(1) is a member of a protected class, (2) was qualified, (3) suffered an adverse employment action, and (4) has at least minimal support for the proposition that the employer was motivated by discriminatory intent.” Buon, 65 F.4th at 79. Defendants do not challenge the first two elements, but argue that Plaintiff has failed to plausibly allege an adverse employment action or discriminatory intent. (DOE Mem. at 10-14; Indiv. Defs.' Mem. at 12-15.)
For purposes of Title VII or § 1983, an adverse employment action is “a materially adverse change in the terms and conditions of employment.” Buon, 65 F.4th at 79 (internal quotation marks omitted). “An adverse employment action is one which is more disruptive than a mere inconvenience or an alteration of job responsibilities.” Id. (quoting Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003)). “Examples of materially adverse changes include termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.” Id. (internal alterations omitted).
For Title VII claims, “with respect to the issue of intent, ‘[t]he facts required by Iqbal to be alleged in the complaint need not give plausible support to the ultimate question of whether the adverse employment action was attributable to discrimination,' but rather ‘need only give plausible support to a minimal inference of discriminatory motivation.'” Buon, 65 F.4th at 83 (quoting Littlejohn, 795 F.3d at 311). “For Section 1983 claims, but-for causation is required and applicable at the pleadings stage.” Walker v. Triborough Bridge & Tunnel Auth., No. 21-CV-00474 (VEC), 2021 WL 5401483, at *4 (S.D.N.Y. Nov. 18, 2021) (citing Lively, 6 F.4th at 304).
But cf. Lively v. WAFRA Investment Advisory Group, Inc., 6 F.4th 293, 303 & n.5 (2d Cir. 2021) (noting holding in Comcast Corp. v. Nat'l Ass'n of African Am.-Owned Media, 140 S.Ct. 1009 (2020), that but-for causation standard for discrimination claims applies both at trial and at the pleading stage but assuming arguendo that Title VII's comparatively “more lenient [motivating factor] standard . . . remains appropriate after Comcast”).
1. Denial Of Professional Development/Training
Although the denial of training can constitute an adverse employment action, “courts require some minimal showing that the employee suffered a ‘material harm' from the particular denied opportunity, ‘such as a failure to promote or a loss of career advancement opportunities.'” Krul v. DeJoy, No. 20-CV-00198 (DNH), 2023 WL 8449589, at *27 (N.D.N.Y. Dec. 6, 2023) (quoting Trachtenberg v. Dep't of Educ., 937 F.Supp.2d 460, 468 (S.D.N.Y. 2013) (citation omitted). Plaintiff has not alleged that the terms or conditions of her employment were harmed by the denial of professional development or preparation time and, therefore, has not adequately alleged that the denial of training constitutes an adverse action. See Carpenter v. City of Mount Vernon, 198 F.Supp.3d 272, 280 (S.D.N.Y. 2016) (denial of training not adverse employment action when plaintiff failed to show any material harm from denial); Wilson v. Connecticut Dep't of Transportation, No. 22-CV-00537 (OAW), 2023 WL 8476262, at *8 (D. Conn. Dec. 7, 2023) (denial of professional development/training not adverse employment action when plaintiff failed to allege any effect on her career or compensation).
Moreover, Plaintiff has failed to plausibly allege that the denial of professional development was because of her race or national origin. In her opposition memorandum, Plaintiff states that she “believe[d]” that three white teachers received professional development on co-teaching strategies while she was not given the same opportunity. (Pl.'s Opp. Mem. at 19.) An inference of a discriminatory motivation may arise from circumstances including, but not limited to, favorable treatment of employees not in the protected group. See Littlejohn, 795 F.3d at 312-13. However, “[i]n order to make such a showing, the plaintiff must compare herself to employees who are ‘similarly situated in all material respects.'” Daniel v. City of New York, No. 20-CV-11028 (PAE), 2021 WL 5988305, at *8 (S.D.N.Y. Dec. 16, 2021) (quoting Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999)). “Similarly situated in all material respects does not mean all respects generally, but rather sufficiently similar to support at least a minimal inference that the difference of treatment may be attributable to discrimination.” Id. (internal quotation marks and alterations omitted). Plaintiff does not set forth facts “that enable any meaningful assessment” of whether she was similarly situated to the three white teachers listed in her opposition memorandum “so as to potentially support the inference” that the denial of professional development was because of discriminatory animus. Daniel, 2021 WL 5988305, at *8 (allegation that non-Nigerian co-worker was given opportunity to work overtime, without more, insufficient to plausibly allege discriminatory motivation); see also Burgis v. New York City Dep't of Sanitation, 798 F.3d 63, 68 (2d Cir. 2015) (“While the [complaint] generally alleges with respect to seven plaintiffs that they have been passed over for subsequent promotions while White individuals, who were allegedly less qualified, were promoted, the [complaint] fails to provide meaningful specifics of the alleged difference in qualifications, let alone discriminatory intent.”).
“In evaluating the legal sufficiency of a pro se plaintiff's claims, a court may rely on the plaintiff's opposition papers.” Vlad-Berindan v. MTA New York City Transit, No. 14-CV-00675 (RJS), 2014 WL 6982929, at *6 (S.D.N.Y. Dec. 10, 2014) (citing cases).
Accordingly, I recommend that Plaintiff's Title VII and § 1983 claims be dismissed insofar as they are based upon denial of professional development/training.
2. Negative Observation Report
To the extent that Plaintiff intends to assert a separate disparate treatment claim based on the October 26, 2021 observation report, the Court agrees with Defendants that the report alone does not rise to the level of an adverse employment action. “[A] negative performance review, without more, does not represent an adverse employment action.” Chung v. City Univ. of New York, 605 Fed.Appx. 20, 22 (2d Cir. 2015) (citing Fairbrother v. Morrison, 412 F.3d 39, 56-57 (2d Cir.2005) (surveying cases and finding that negative evaluation was not materially adverse where the plaintiff did not assert detrimental effect on her salary, benefits, or title), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)); see also Zoulas v. New York City Dep't of Educ., 400 F.Supp.3d 25, 53 (S.D.N.Y. 2019) (“negative observation reports, feedback, and inferior teacher ratings . . . do not constitute adverse employment actions in and of themselves”).
Accordingly, I recommend that Plaintiff's Title VII and § 1983 claims be dismissed insofar as they are based upon the negative observation report.
3. Denial Of Dean's Position
With respect to Plaintiff's claim based on denial of a Dean's position, Defendants first argue that Plaintiff has failed to exhaust administrative remedies and, therefore, that that claim should be dismissed. (DOE Mem. at 7-8; Indiv. Defs.' Mem. at 9.) The failure to exhaust administrative remedies is an affirmative defense, for which Defendants bear the burden of proof. See McKenzie v. Big Apple Training Inc., No. 22-CV-09554 (GHW), 2023 WL 4866041, at *6 (S.D.N.Y. July 31, 2023). “While affirmative defenses are most typically asserted in an answer, they ‘may be raised on a motion to dismiss . . . where the complaint itself establishes the circumstances required as a predicate to a finding that the affirmative defense applies.'” Id. (quoting In re Sept. 11 Prop. Damage & Bus. Loss Litig., 481 F.Supp.2d 253, 258 (S.D.N.Y. 2007) (alteration omitted)). Because Plaintiff attaches to the Complaint her SDHR Complaint, which she states was dually filed with the EEOC, the Court considers Defendant's arguments regarding exhaustion as to Plaintiff's Title VII claim against the DOE.
As set forth above (see footnote 4 supra), there is no exhaustion requirement under § 1983.
“It is well established that Title VII requires a plaintiff to exhaust administrative remedies before filing suit in federal court.” Fowlkes v. Ironworkers Local 40, 790 F.3d 378, 384 (2d Cir. 2015). However, “claims not raised in an EEOC complaint [or complaint to the equivalent state agency] may still be part of the complaint later filed in federal court if they are ‘reasonably related' to the claim filed with the agency.” Littlejohn, 795 F.3d at 322 (quoting Williams v. New York City Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006)). “A claim is considered reasonably related if the conduct complained of would fall within the scope of the . . . investigation which can reasonably be expected to grow out of the charge that was made.” Zoulas, 400 F.Supp. at 61 (quoting Fitzgerald v. Henderson, 251 F.3d 345, 359-60 (2d Cir. 2001)). Claims based on “further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge” also are reasonably related. Kirkland-Hudson v. Mount Vernon City Sch. Dist., No. 21-CV-00695 (KMK), 2023 WL 2691622, at *6 (S.D.N.Y. Mar. 29, 2023) (quoting Alfano v. Costello, 294 F.3d 365, 381 (2d Cir. 2002)).
Plaintiff contends that, because she mentioned that she was going to apply for the Dean position, her allegations are reasonably related to those in the SDHR/EEOC charge. (Pl.'s Opp. Mem. at 11-12.) The Court disagrees. At the time she submitted the SDHR/EEOC charge, Plaintiff had not yet applied for the Dean's position and mentioned it only as part of what she hoped to receive to settle her complaint. (See Compl. at PDF p. 21 (“I want a compensation time position of dean that I am going to apply for (I have done this before at my former school)”.) Thus, denial of the Dean position would not fall within the investigation that would reasonably result from the charge. See Kirkland-Hudson, 2023 WL 2691622, at *9 (“Plaintiff's failure to be hired for the 2020 summer school program is not reasonably related to the allegations in the EEOC charge, as the charge involves an entirely different type of work assignment than that described in the EEOC charge.”). Nor is it a further incident carried out in precisely the same manner alleged in the charge, as the charge does not include any instances for which Plaintiff alleges that she applied for and was denied other positions. Accordingly, I recommend that Plaintiff's Title VII claim against the DOE based on denial of the Dean's position be dismissed for failure to exhaust administrative remedies.
Plaintiff includes a copy of the SDHR complaint with her Complaint. (Compl. at PDF pp. 15-21.) Further, the Court is permitted to take judicial notice of Plaintiff's filings with the SDHR. See Zoulas, 400 F.Supp.3d at 48.
To the extent this claim can be construed as a § 1983 claim against the Individual Defendants, I recommend that it be dismissed for failure to state a claim. Plaintiff's Complaint alleges only that Principal Erickson “did not acknowledge” her application for the Dean's position (Compl. ¶ 26), not that she was denied such a position. In her opposition memorandum, Vora asserts that she “applied for the dean position two years in a row and was denied both years.” (Pl.'s Opp. Mem. at 16.) “[T]he denial of a workplace opportunity that materially affects the terms and conditions of employment, can constitute an adverse employment action.” Buon, 65 F.4th at 80; see also id. at 81 (discussing denial of opportunities to teachers). Vora also states that the Dean position was a compensation time position, which suggests that she may be able to plausibly allege that it was a more desirable position in terms of pay, prestige or both. See Buon, 65 F.4th at 81-82 (adverse employment actions involving denial of opportunities “not limited to those opportunities that involve a material increase in pay”); see also Herling v. N.Y.C. Dep't of Educ., No. 13-cv-05287 (JG), 2014 WL 1621966, at *6 (E.D.N.Y. Apr. 23, 2014) (“Denying an employee the opportunity to work overtime, comp time, or additional per-session employment may also constitute an adverse employment action.”). However, neither the Complaint nor Plaintiff's opposition memorandum set forth sufficient factual allegations regarding the position or Plaintiff's application or applications to the position to plausibly allege an adverse employment action.
Further, Plaintiff has not plausibly alleged that she was denied the position because of her race or national origin. In her opposition memorandum, Vora asserts that, after she applied the second time, the Dean position was given to an inexperienced and untenured white male teacher despite the fact that she was qualified and had the relevant experience and that “all compensation time positions have gone to white teachers[.]” (Pl.'s Opp. Mem. at 7-8, 16, 19-20.) However, these allegations, without more, are insufficient to raise an inference of discrimination based on race or national origin. Notably, Plaintiff asserts that, in denying her grievance regarding denial of the position, Principal Erickson explained that she needed someone during the day to mediate student conflicts, while Plaintiff applied for a night position. (Id. at 7; see also Defs.' Reply Decl., ECF No. 42, Ex. A.) Plaintiff also asserts that she believed that Principal Erickson eliminated the night position two years in a row because Vora applied and Principal Erickson did not want to give her the position. (Pl.'s Opp. Mem. at 19.) However, Plaintiff's belief that Principal Erickson was motivated by discriminatory animus is insufficient to survive a motion to dismiss. See, e.g., Williams v. Wellness Med. Care, P.C., No. 11-CV-05566 (KMK), 2013 WL 5420985, at *6 (S.D.N.Y. Sept. 27, 2013) (“Plaintiff relies on only his belief that Defendants were motivated by racial animus . . . [b]ut without sufficient facts, even the most sincerely held beliefs do not comprise a sufficient basis for withstanding a 12(b)(6) attack.”). Accordingly, I recommend that Plaintiff's § 1983 claims based on denial of the Dean position be dismissed.
Plaintiff also states that, following her escalation of the grievance, Superintendent Sullivan approved the night Dean's position for her on October 17, 2023. (Pl.'s Opp. Mem. at 7-8.)
B. Hostile Work Environment
To establish a hostile work environment under Title VII or Section 1983, “a plaintiff must show 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 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)) (citations and internal quotation marks omitted). “This standard has both objective and subjective components: the conduct complained of must be severe or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must subjectively perceive the work environment to be abusive.” Id. at 321 (internal citations omitted). In considering whether a plaintiff suffered a hostile work environment, courts consider “the totality of the circumstances, including ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.'” Littlejohn, 795 F.3d at 321 (quoting Harris, 510 U.S. at 23).
“To survive a motion to dismiss, a plaintiff need only plead facts sufficient to support the conclusion that she was faced with harassment . . . of such quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.” Small v. N.Y.C. Dep't of Educ., 650 F.Supp.3d 89, 99-100 (S.D.N.Y. 2023) (internal quotation marks omitted) (quoting Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007)). “The Second Circuit has ‘repeatedly cautioned against setting the bar too high in this context.'” Id. (quoting Patane, 508 F.3d at 113); see also Feingold v. New York, 366 F.3d 138, 150 (2d Cir. 2004) (“The environment need not be ‘unendurable' or ‘intolerable.'”) (quoting Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003)). Moreover, “[i]t is axiomatic that the plaintiff also must show that the hostile conduct occurred because of a protected characteristic.” Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015).
Plaintiff's hostile work environment claims are based on allegations that Principal Erickson filed corporal punishment allegations against her February 2020 and unfairly gave her ineffective ratings; that AP Hernandez yelled at her in front of students during a Regents exam; pressured her to meet during her only preparation period and lunch period; constantly emailed her and made her feel pressured, anxious and stressed to do things that seemed out of the bounds of what professional ethics required and demeaned her by cc'ing the entire administration in an email directing her to follow a format for reporting absences; that “the administration” subjected her to a medical evaluation for her mental fitness and revoked her reasonable disability accommodation to be supervised by an AP with a science background; and that she generally received a lack of support and was disproportionally targeted for her actions. (Compl. ¶¶ 4-6, 8, 12-13, 21, 23, 27; see also Pl.'s Opp. Mem. at 22-23.)
The Court finds that Plaintiff has not plausibly alleged a workplace permeated with discriminatory intimidation, ridicule and insult. (See DOE Opp. Mem. at 15; Indiv. Defs.' Mem. at 16-17.) The conduct alleged by Plaintiff, even if true, is not severe or pervasive enough that a reasonable person would have found Plaintiff's workplace hostile or abusive. See, e.g., Modica, 2021 WL 3408587, at *7 (finding issuance of disciplinary notices, removal from certain positions and receipt of low evaluations insufficient to plausibly allege hostile work environment claim and citing cases).
In any event, Plaintiff has not plausibly alleged that the hostile conduct occurred because of a protected characteristic. While Plaintiff asserts “a chronology of alleged adverse actions,” she does “not plead facts linking [her protected characteristic] to the alleged adverse actions[,]” which is “fatal” to her hostile work environment claim. SeeZabar v. New York City Dep't of Educ., No. 18-CV-06657 (PGG), 2020 WL 2423450, at *6 (S.D.N.Y. May 12, 2020); see also Bernheim v. New York City Dep't of Educ., No. 19-CV-09723 (VEC) (JLC), 2021 WL 2619706, at *14 (S.D.N.Y. June 25, 2021), report and recommendation adopted, 2021 WL 4198126 (S.D.N.Y. Sept. 15, 2021). Accordingly, I recommend that Plaintiff's Title VII and § 1983 hostile work environment claims be dismissed.
C. Retaliation
Title VII prohibits an employer from “discriminating] against any of [its] employees . . . because [the employee] has opposed any practice made an unlawful employment practice by this subchapter[.]” 42 U.S.C. § 2000e-3(a). For a retaliation claim under Title VII to survive a motion to dismiss, “the plaintiff must plausibly allege that: (1) defendants discriminated-or took an adverse employment action-against her, (2) because she has opposed any unlawful employment practice.” Vega, 801 F.3d at 90 (alterations omitted). The same standard applies to § 1983 claims, as long as the state actor requirement also is met. See id. at 91.
“‘Protected activity' is ‘action taken to protest or oppose statutorily prohibited discrimination.'” Witcher, 2023 WL 2609342, at *11 (quoting Natofsky v. City of New York, 921 F.3d 337, 354 (2d Cir. 2019)). For purposes of retaliation claims, an “adverse employment action is any action that ‘could well dissuade a reasonable worker from making or supporting a charge of discrimination.'” Vega, 801 F.3d at 90 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006). Thus, “an action need not affect the terms and conditions of a plaintiff's employment for purposes of a retaliation claim.” Fincher v. Depository Tr. & Clearing Corp., 604 F.3d 712, 720 n.6 (2d Cir. 2010).
Plaintiff alleges that she was retaliated against for speaking out at the UFT school culture preservation meeting in October 2021 and for voicing her opinions on school safety protocols related to COVID-19. (Compl. ¶ 16; see also Pl.'s Opp. Mem. at 25.) She also alleges that she was retaliated against for sending an email on March 23, 2022 expressing concern about a fifth administrator (AP King) being hired and “that academic departments in the school had been eliminated and the school had been reorganized suddenly and non-transparently.” (Compl. ¶ 22; see also Pl.'s Opp. Mem. at 25.) The only one of these actions that plausibly allege an action taken to oppose racial or national origin discrimination is speaking out at the UFT school culture meeting in October 2021. However, Plaintiff does not allege that Defendants were aware of these comments and, thus, has not plausibly allege that any adverse action was taken against her as a result. See Gates v. City of New York, No. 20-CV-03185 (JPC), 2021 WL 3774189, at *12 (S.D.N.Y. Aug. 25, 2021) (“For [defendants] to have retaliated against [plaintiff] because of his filing of the EEOC charge, they of course needed to have knowledge of that charge.”).
In her opposition memorandum, Plaintiff also contends that she sent an email to Principal Erickson on October 28, 2021 (cc'ing Superintendent Rotondo) stating that she felt racially and ethnically targeted; filed a complaint with the DOE's Office of Equal Opportunity (“OEO”); and retained an attorney to send letters to Superintendent Rotondo in January and February 2022. (Pl.'s Opp. Mem. at 25.) Plaintiff asserts that “shortly thereafter” her reasonable accommodation was revoked, she was sent to a medical evaluation on March 30, 2022 and she was denied the Dean's position on June 22, 2022. (See id.) Even assuming Plaintiff's October 28, 2021 email constituted protected activity, she has not plausibly alleged an adverse action as a result. Both of the alleged retaliatory actions, i.e., the mental fitness evaluation and denial of the Dean position, occurred at least five months later, which is too long to plausibly allege a causal connection. S ee Brown v. City of New York, 622 Fed. App'x 19 (2d Cir. 2015) (no plausible causal connection for alleged retaliatory acts that occurred more than two to three months after protected activity).
In her SDHR Complaint, Plaintiff states that she filed a complaint with the OEO on January 10, 2022, against Principal Erickson and AP Hernandez. (See Compl. at PDF p. 17.) However, in her opposition memorandum, Plaintiff asserts that, on December 17, 2021, Principal Erickson filed a complaint with the OEO against AP Hernandez on Plaintiff's behalf and that the complaint was acknowledged by the OEO on January 10, 2022. (See Pl.'s Opp. Mem. at 5; see also Compl. at PDF pp. 40, 49.)
With respect to the OEO complaint, Plaintiff has alleged conflicting facts regarding the filing of the complaint (see footnote 10, supra) and otherwise insufficient facts regarding the content of the complaint to plausibly allege a retaliation claim on that basis. Finally, Plaintiff has not plausibly alleged that the letters to Superintendent Rotondo constitute protected activity for purposes of Title VII or Section 1983 because Plaintiff they do not address complaints regarding discrimination based on race or national origin. (See Compl. at PDF pp. 41-43, 48-50; see also Defs.' Reply Mem., ECF No. 41, at 9.) To show protected activity, “complaints cannot be so vague or generalized that the employer could not reasonably have understood that the plaintiff's complaint was directed at conduct prohibited by Title VII.” Richard v. New York City Dep't of Educ., No. 16-CV-00957 (MKB), 2017 WL 1232498, at *16 (E.D.N.Y. Mar. 31, 2017) (citing Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98, 108 (2d Cir. 2011)); see also Ellis v. Century 21 Dep't Stores, 975 F.Supp.2d 244, 280 (E.D.N.Y. 2013) (“When making the complaint, [p]laintiff must do so in sufficiently specific terms so that the employer is put on notice that the plaintiff believes he or she is being discriminated against on the basis of [the protected status].” (citation and internal quotation marks omitted)).
Accordingly, I recommend that Plaintiff's retaliation claims under Title VII and § 1983 be dismissed.
III. ADA And Rehabilitation Act Claims
As an initial matter, Plaintiff does not dispute that the Individual Defendants are not liable under the ADA or the Rehabilitation Act. (Pl.'s Opp. Mem. at p. 8.) Accordingly, I recommend that those claims be dismissed and consider Plaintiff's claims only as to the DOE. The Court liberally construes the Complaint as asserting disability discrimination claims based on failure to accommodate and hostile work environment, as well as a retaliation claim.
Unlike Plaintiff's claims of race and national original discrimination, the Court does not construe Plaintiff's disability discrimination claims under § 1983, as “[c[laims of disability discrimination are not actionable” under that statute. See Gonzalez, 377 F.Supp.3d at 288 (citing Bd. of Trs. v. Garrett, 531 U.S. 356, 368 (2001) (“If special accommodations for the disabled are to be required, they have to come from positive law and not through the Equal Protection Clause.”)).
A. Failure To Accommodate
Plaintiff was diagnosed with generalized anxiety disorder in or about 2014. (Compl. ¶ 2.) Plaintiff alleges that she told Principal Erickson and AP Hernandez that receiving constant emails from AP Hernandez was stressful and the tone of her emails caused her “a lot of anxiety.” (Compl. ¶ 8.) Plaintiff further alleges that, on March 4, 2022, Superintendent Rotondo granted her a disability-based accommodation, based in part on a letter from Vora's psychiatrist, assuring Vora that she would be supervised by AP Nam. (Id. ¶ 20; see also id. at PDF p. 51.) Shortly thereafter, Plaintiff alleges that Principal Erickson hired AP King and put her in charge of supervising Vora. (Id. ¶¶ 21, 24, 27.) In her opposition memorandum, Plaintiff asserts that AP King came to her classroom and stared at her and made her feel belittled and targeted and that AP's King's feedback was not helpful and caused her additional stress and anxiety. (Pl.'s Opp. Mem. at 21.)
To plead a failure-to-accommodate claim, a plaintiff must allege that “(1) plaintiff is a person with a disability under the meaning of the ADA [or Rehabilitation Act]; (2) an employer covered by the statute had notice of [her] disability; (3) with reasonable accommodation, plaintiff could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.” McMillan v. City of New York, 711 F.3d 120, 125 (2d Cir. 2013); see also Earl v. Good Samaritan Hosp. of Suffern NY, No. 22-2505-CV, 2023 WL 8708417, at *1 (2d Cir. Dec. 18, 2023) (noting “identical requirements” under ADA and Section 504 of the Rehabilitation Act) (quoting Rodriguez v. City of New York, 197 F.3d 611, 618 (2d Cir. 1999)). A person is disabled under the meaning of the ADA or Rehabilitation Act if she has “a physical or mental impairment that substantially limits one or more major life activities[.]” Hamilton v. Westchester Cnty., 3 F.4th 86, 92 (2d Cir. 2021) (quotation marks omitted); see also 42 U.S.C. § 12102(1)(A); 45 C.F.R. § 84.3(j)(1).
The DOE argues that this claim must be dismissed because Plaintiff has not plausibly alleged that her impairments substantially limit one or more major life activities and, in any event, she received the accommodation she sought, i.e., to avoid collaborative work with AP Hernandez. (DOE Mem. at 18-19.) Plaintiff does not address the DOE's first argument and, as to the second, appears to contend that the reasonable accommodation she sought was not avoiding work with AP Hernandez, but instead, specifically being supervised by AP Nam, which did not occur until March or April 2023. (Pl.'s Opp. Mem. at 20-21.)
The Court agrees with Defendants that Plaintiff has failed to plausibly allege that she is a person with a disability under the ADA or Rehabilitation Act. “Merely having an impairment is not sufficient to trigger the ADA's protections.” Witcher v. New York City Dep't of Educ., No. 21-CV-07750 (PGG) (SN), 2023 WL 2609342, at *10 (S.D.N.Y. Mar. 23, 2023) (quoting Murtha v. New York State Gaming Comm'n, 2019 WL 4450687, at *9 (S.D.N.Y. Sept. 17, 2019)). “[I]n evaluating a claimed impairment to the major life activity of working, ‘[t]he term substantially limits means significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.” Byfield v. New York City Dep't of Education, No. 22-CV-05869 (KPF), 2023 WL 8435183, at *7 (S.D.N.Y. Dec. 5, 2023) (quoting Muller v. Costello, 187 F.3d 298, 312 (2d Cir. 1999) (emphasis in original)). If the plaintiff establishes only the inability to perform a single, particular job, she has failed to establish a substantial impairment to her major life activity of working. Id. (internal quotation marks omitted).
Here, Plaintiff does not allege that she cannot perform a class of jobs, or even a particular job, but rather that she cannot work with one or more specific supervisors. Such allegations are insufficient to plausibly allege a substantial impairment. See Shields v. NYC Health & Hosps. Corp., 489 F.Supp.3d 155, 164 (E.D.N.Y. 2020) (plaintiff's allegations that depression and anxiety prevented him from working with two specific supervisors insufficient to allege substantial impairment) (citing Potter v. Xerox Corp. 1 Fed.Appx. 34, 37 (2d Cir. 2001) (finding that where plaintiff's “disability only prevents him from working in one position-the position he held under his last supervisor-[his] ability to work is not substantially impaired”)).
B. Retaliation
The same standard that applies to retaliation claims under Title VII also applies to retaliation claims under the ADA. See Witcher, 2023 WL 2609342, at *13 (analyzing Title VII and ADA retaliation claims under same standard); Shields, 489 F.Supp. at 165 (same). Thus, Plaintiff must plausibly allege that the DOE discriminated-or took an adverse employment action- against her because she engaged in activity protected by the ADA. See Vega, 801 F.3d at 90; see also Volpe v. New York City Dep't of Educ., 195 F.Supp.3d 582, 595 (S.D.N.Y. 2016). “Retaliation claims under the Rehabilitation Act and the ADA are governed by the same standards.” Volpe, 195 F.Supp.3d at 595 (citing Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir.2002)). “Even if a plaintiff has not alleged that [s]he has a disability under the ADA, [s]he may still succeed on a retaliation claim if [s]he plausibly alleges that [s]he had a ‘good faith, reasonable belief that the underlying challenged actions of the employer violated [the ADA].'” Sharikov v. Philips Med. Sys. MR, Inc., 659 F.Supp.3d 264, 282 (N.D.N.Y. 2023) (quoting Morey v. Windsong Radiology Grp., P.C., 794 Fed.Appx. 30, 33 (2d Cir. 2019)).
Plaintiff alleges that she informed AP Hernandez and Principal Erickson that their actions and emailing caused her anxiety (Pl.'s Opp. Mem. at 20 (citing Compl. ¶ 8)) and also points to letters she and her psychiatrist sent to Superintendent Rotondo regarding harassment by AP Hernandez as alleged protected activity. (Pl.'s Opp. Mem. at 20, 25.) Plaintiff's statement to AP Hernandez and Principal Erickson that emails were causing her anxiety does not plausibly allege that she protested or opposed statutorily prohibited discrimination.
Moreover, although her letter requesting a reasonable accommodation could be considered protected activity, the denial of that accommodation cannot itself form the basis of a retaliation claim. Cf. Barrett v. New York State, No. 18-CV-01425 (JLS) (SR), 2023 WL 6319767, at *5 (W.D.N.Y. Aug. 30, 2023), report and recommendation adopted, 2023 WL 6318724 (W.D.N.Y. Sept. 28, 2023). Plaintiff does not allege any other adverse action stemming from her reasonable accommodation request, which, according to Plaintiff, was granted and then revoked until March or April 2023 at which time AP Nam was assigned as her direct supervisor. (See Pl.'s Opp. Mem. at 7.)
Accordingly, I find that Plaintiff has not plausibly alleged a retaliation claim under the ADA or Rehabilitation Act.
IV. NYSHRL And NYCHRL Claims
Defendants argues that Plaintiff's NYSHRL and NYCHRL claims should be dismissed on certain procedural grounds, in addition to for failure to state a claim. The Court first considers the procedural arguments and then considers whether Plaintiff has plausibly alleged a discrimination or retaliation claim under either statute.
A. Notice Of Claim Requirement
Defendants argue that Plaintiff has not pled the existence of a timely notice of claim as required by New York Education Law § 3813(1) and, therefore, her NYSHRL and NYCHRL claims must be dismissed. (DOE Mem. at 6-7; Indiv. Defs.' Mem. at 7-8.)
“New York Education Law § 3813 requires a plaintiff to file a notice of claim prior to initiating a lawsuit against a school, school district, board of education, or education officer.” Collins v. City of New York, 156 F.Supp.3d 448, 460 (S.D.N.Y. 2016) (citing N.Y. Educ. Law § 3813(1) (notice of claim required for claims “against any school district, board of education, board of cooperative educational services, school [or] . . . any officer of a school district, board of education, board of cooperative educational services, or school”)). “Superintendents qualify as officers upon whom a notice of claim must be filed, but principals do not.” Id. (citing N.Y. Educ. Law § 2(13)). A notice of claim must be filed within three months of accrual of the claim. See N.Y. Educ. L. § 3813(1); see also Williams v. Geiger, 447 F.Supp.3d 68, 87 (S.D.N.Y. 2020).
Plaintiff correctly argues that this requirement does not apply to her claims against Principal Erickson and, therefore, those claims should not be dismissed based upon her failure to file a notice of claim. With respect to the DOE and Superintendent Rotondo, Plaintiff does not allege that she filed a notice of claim, but argues that she complied with the § 3813(1) notice requirement by filing a timely EEOC charge on June 20, 2022, which was presented to the DOE and to which the DOE responded on August 11, 2022. (Pl.'s Opp. Mem. at 10-11.)
“An EEOC charge can suffice as a substitute for a notice of claim ‘only under the rare and limited circumstance where the EEOC charge puts the school district on notice of the precise claims alleged, is served on the governing board of the district (and not a different arm of the district) and is served within the statutory time period.'” Everett v. New York City Dep't of Educ., No. 21-CV-07043 (JPC), 2023 WL 5629295, at *10 (S.D.N.Y. Aug. 31, 2023) (quoting Rettino v. N.Y.C. Dep't of Educ., No. 19-CV-05326 (JGK), 2020 WL 4735299, at *5 (S.D.N.Y. Aug. 14, 2020)); see also Modica v. New York City Dep't of Educ., No. 20-CV-04834 (JMF), 2021 WL 3408587, at *4 (S.D.N.Y. Aug. 4, 2021) (“Although some courts have held that filing an EEOC or SDHR complaint may satisfy the notice of claim requirement, the plaintiff must still plausibly allege that the administrative complaint met § 3813's requirements, including that the EEOC or SDHR complaint was timely served upon the correct entity.”) (internal quotation marks and citations omitted).
Plaintiff has not plausibly alleged in the Complaint that she has met she has met § 3813's requirements, including regarding service upon the proper entity. Accordingly, I recommend that Plaintiff's NYSHRL and NYCHRL claims against the DOE and Superintendent Rotondo be dismissed. See Verne v. New York City Dep't of Educ., No. 21-CV-05427 (JPC), 2022 WL 4626533, at *6 (S.D.N.Y. Sept. 30, 2022) (dismissing NYSHRL and NYCHRL claims when plaintiff had not alleged that she served EEOC or SDHR complaint on any district entity) (citing Rettino, 2020 WL 4735299, at *5 (dismissing claims when the plaintiff failed to allege service of EEOC charge in his complaint)); see also Blumstein-Torrella v. New York City Dep't of Educ., No. 19-CV-03492 (ALC), 2023 WL 5097873, at **3-4 (S.D.N.Y. Aug. 9, 20223). However, because Plaintiff may be able to cure this defect, I recommend that she be granted leave to amend. See Modica, 2021 WL 3408587, at *4.
B. Timeliness
Defendants argue that Plaintiff's NYSHRL and NYCHRL claims are subject to the one-year statute of limitations under New York Education Law § 3813 and, therefore, claims based on allegations which occurred prior to December 24, 2021 (one year prior to when this action was filed) should be dismissed as time barred. (DOE Mem. at 8; Indiv. Defs.' Mem. at 10-11.)
Plaintiff's NYSHRL and NYCHRL claims against the DOE and Superintendent Rotondo are subject to a one-year statute of limitations See N.Y. Educ. Law § 3813(2-b)); see also Amorosi v. S. Colonie Indep. Cent. Sch. Dist., 9 N.Y.3d 367, 373 (2007). However, as Plaintiff argues (Pl.'s Opp. Mem. at 13) and Defendants do not dispute (see Defs.' Reply Mem. at 3), her claims against Principal Erickson are subject to a three-year statute of limitations. See Rettino, 2020 WL 4735299, at *4 (statute of limitations period for NYSHRL and NYCHRL claims against individuals who are not school officers is three years); see also Warmin v. New York City Dep't of Educ., No. 16-CV-08044 (KPF), 2018 WL 1441382, at *7 (S.D.N.Y. Mar. 22, 2018). Thus, Plaintiff's NYSHRL and NYCHRL claims against Principal Erickson are timely.
With respect to Plaintiff's NYCHRL claims against the DOE and Superintendent Rotondo, the Court agrees that claims accruing prior to December 24, 2021 would be time barred. However, Defendants do not identify discrete claims, if any, that accrued prior to that date and do not dispute in their reply memorandum that Plaintiff has filed some timely NYCHRL claims.Accordingly, the Court declines to recommend dismissal for lack of timeliness.
The Court notes that “[t]he [continuing violation] doctrine under the NYCHRL considers otherwise time-barred discrete acts timely where specific and related instances of discrimination are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice.” Williams v. New York City Dep't of Educ., No. 19-CV-01353 (CM), 2019 WL 4393546, at *19 (S.D.N.Y. Aug. 28, 2019) (internal alterations omitted).
With respect to Plaintiff's NYSHRL claims against the DOE and Superintendent Rotondo, Plaintiff argues that her dual-filed EEOC and SDHR complaints toll the statute of limitations and therefore, her NYSHRL claims that accrued on or after June 20, 2012 (one year prior to her filing of the complaints) are timely. (Pl.'s Opp. Mem. at 12-13.) Although “it is an open question in the Second Circuit whether the filing of an EEOC charge tolls the statute of limitations for discrimination claims under the [NYSHRL], the “overwhelming weight of authority” holds that it does. Id. Defendants do not dispute the applicability of tolling, but argue that it is limited to the period the complaints were pending and, therefore, tolls the limitations period by 138 days. (See Defs.' Reply Mem. at 3 (noting that Plaintiff filed her complaints on June 20, 2022 and received her Notice of Right to Sue on November 5, 2022 (citing Compl. at PDF p. 6)).) By the Court's count, even that limited tolling renders timely Plaintiff's NYSHRL claims against the DOE and Principal Rotondo that accrued on or after August 8, 2021, which excludes only any discrete claim based on Principal Erickson's filing of corporal punishment against her in February 2020. As set forth above, it does not appear that Plaintiff is asserting such a claim. Accordingly, the Court considers Plaintiff's NYSHRL claims against DOE and Superintendent Rotondo timely.
C. Whether Principal Erickson Is An “Employer” Under The NYSHRL
Principal Erickson also argues that Plaintiff's NYSHRL claims against her should be dismissed because she is not an “employer” under that statute. (Indiv. Defs.' Mem. at 7.)
The NYSHRL limits primary liability for discrimination under § 296(1)(a) to employers. See N.Y. Exec. Law § 296(1)(a). In Doe v. Bloomberg, L.P., the New York Court of Appeals clarified that the “ownership/personnel decisions” test relevant to defining “employer” in certain federal statutes, did not apply to the NYSHRL and that the NYSHRL “does not render employees liable as individual employers.” Id., 36 N.Y.3d 450, 457-58 (2021) (citing Patrowich v. Chemical Bank, 63 N.Y.2d 541 (1984)); see also Bueno v. Eurostars Hotel Co., S.L., No. 21-CV-00535 (JGK), 2022 WL 95026, at *7 (S.D.N.Y. Jan. 10, 2022). Nonetheless, any person may be liable for aiding and abetting unlawful discrimination under § 296(6) of the NYSHRL. In her opposition memorandum, Plaintiff invokes the aider-and-abettor theory of liability. (Pl.'s Opp. Mem. at 9.) Moreover, the NYSHRL's anti-retaliation provision provides for suit against “any person” and, thus, allows for personal liability. N.Y. Exec. Law § 296(7); see also Verne, 2022 WL 4626533, at *16. Accordingly, the Court does not recommend dismissal of Plaintiff's NYRHSL claims against Principal Erickson on the ground that she is not an employer.
D. Discrimination Claims Under NYSHRL/NYCHRL
The NYSHRL § 296(1)(a) makes it “an unlawful discriminatory practice . . . [f]or an employer . . . because of an individual's . . . race . . . [or] sex [or] disability. . . to discriminate against such individual in compensation or in terms, conditions or privileges of employment.” N.Y. Exec. Law § 296(1)(a). The statute also makes it an unlawful discriminatory practice “for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so.” N.Y. Exec. Law § 296(6). The NYSHRL has a broader definition of disability than does the ADA and only requires a plaintiff to show that she has a medically diagnosable impairment. See Kirkland-Hudson, 2023 WL 2691622, at *20.
Historically, NYSHRL claims were subject to largely the same analysis as federal civil rights law such as Title VII. However, in June 2019, the New York State Legislature amended the NYSHRL to require that courts construe that statute “liberally for the accomplishment of [its] remedial purposes . . . regardless of whether federal civil rights laws, including those laws with provisions worded comparably . . . have been so construed.'” Cooper v. Franklin Templeton Invs., No. 22-CV-02763, 2023 WL 3882977, at *3 (2d Cir. June 8, 2023) (quoting N.Y. Exec. Law § 300 (2023)) (noting but not resolving impact of amendments since claims fell short under more liberal NYCHRL standard). “While New York courts have not yet produced any substantive analysis of how this amendment changes standards of liability under the NYSHRL, courts in this District have interpreted the amendment as ‘render[ing] the standard for claims closer to the standard of the NYCHRL[.]'” Everett v. New York City Dep't of Educ., No. 21-CV-07043 (JPC), 2023 WL 5629295, at *11 (S.D.N.Y. Aug. 31, 2023) (quoting Livingston v. City of New York, 563 F.Supp.3d 201, 232 n.14 (S.D.N.Y. 2021)); see also Doolittle v. Bloomberg L.P., 22-cv-09136 (JLR), 2023 WL 7151718, at *7 (S.D.N.Y. Oct. 31, 2023). “The case law, however, has yet to definitively resolve whether the NYSHRL's liability standard is now coextensive with that of the NYCHRL, or whether it requires more, so as to impose a standard between federal and city law.” Wheeler v. Praxair Surface Techs., Inc., No. 21-CV-01165 (PAE), 2023 WL 6282903, at *10 (S.D.N.Y. Sept. 26, 2023). The Court follows the approach taken by the Wheeler Court and assumes arguendo, for purposes of this motion, that the amended NYSHRL standard is the same as standard under the NYCHRL without prejudice to Defendants' right to later attempt to demonstrate that the NYSHRL sets a more rigorous standard. See id. at *11.
The amendments apply to claims accruing after October 11, 2019. See Wellner v. Montefiore Med. Ctr., No. 17-CV-03479 (KPF), 2019 WL 4081898, at *5 n.4 (S.D.N.Y. Aug. 29, 2019). Accordingly, they apply to Plaintiff's claims.
The NYCHRL makes it “an unlawful discriminatory practice for an employer or an employee or agent thereof, because of the [protected characteristic] of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.” N.Y.C. Admin. Code § 8-107(1)(a). “A court must construe all provisions of the NYCHRL broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.” Perez v. Y & M Transportation Corp., 219 A.D.3d 1449, 1451 (2d Dep't 2023) (internal quotation marks omitted). “Courts must analyze NYCHRL claims separately from any federal law claims and should construe the NYCHRL ‘liberally for the accomplishment of the uniquely broad and remedial purposes thereof.'” Bueno, 2022 WL 95026, at *8 (quoting Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013)). A plaintiff need only show that she was “treated . . . less well, at least in part for a discriminatory reason.” Khwaja v. Jobs to Move Am., No. 19-CV-07070 (JPC), 2021 WL 3911290, at *3 (S.D.N.Y. Sept. 1, 2021) (quoting Mihalik, 715 F.3d at 110 n.8). Thus, under the NYCHRL, “[t]he standards for discrimination and hostile work environment are the same.” Raji v. Societe Generale Ams. Sec. LLC, No. 15-CV-01144 (AT) (JLC), 2018 WL 1363760, at *7 (S.D.N.Y. Feb. 28, 2018) (internal citations omitted). Under the NYCHRL, unlike the NYSHRL, direct liability is not limited to employers. See Everett, 2023 WL 5629295, at *11 (noting that NYCHRL extends to employees).
Defendants argue that, even under the more liberal standard, Plaintiff has not plausibly alleged facts creating an inference of discrimination. (DOE Mem. at 12-13; Indiv. Defs.' Mem. at 14-15.) The Court agrees. Although Plaintiff has alleged that she has been treated less well in certain circumstances, she has not plausibly alleged that such treatment occurred because of her race, national origin or disability. Plaintiff argues that she had made such a showing through allegations that she was treated differently from her white co-teacher and was denied the Dean position that was given to an untenured white teacher. (Pl.'s Opp. Mem. at 24.) However, Plaintiff's allegation that her white co-teacher was treated better is insufficient to plausibly allege the differential treatment was because of her race. See, e.g., Brightman v. Physician Affliate Grp. of New York, P.C., No. 20-CV-04290 (DLC), 2021 WL 1999466, at *8 (S.D.N.Y. May 19, 2021) (“Simply pleading that a male colleague, who may or may not have been similarly situated, was treated differently is not enough to plausibly allege that the differential treatment occurred because of Brightman's gender.”); Rosen v. N.Y.C. Dep'tof Educ., No. 18-CV-06670 (AT), 2019 WL 4039958, at *9 (S.D.N.Y. Aug. 27, 2019) (dismissing NYCHRL claims when plaintiff had not alleged that she was “treated less well than other employees because of her disability”) (emphasis in original). Further, as discussed above in the context of her federal claims, Plaintiff has not plausibly alleged that she was denied the Dean position because of her race or nation origin.
Accordingly, I recommend that Plaintiff's NYSHRL and NYCHRL claims be dismissed.
E. Retaliation Claims Under NYCHRL/NYSHRL
The NYSHRL prohibits retaliation “against any person because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article.” N.Y. Exec. Law § 296. Similarly, under the NYCHRL, it is “an unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to retaliate . . . in any manner against any person because such person has[,]” inter alia, “opposed any practice forbidden under this chapter.” N.Y.C. Admin. Code § 8-107(7).
“[T]o prevail on a retaliation claim under the NYCHRL, the plaintiff must show that she took an action opposing her employer's discrimination, and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action.” Mihalik, 715 F.3d at 112 (internal quotation marks and citations omitted); see also Arazi v. Cohen Bros. Realty Corp., No. 20-CV-08837 (GHW), 2022 WL 912940, at *16 (S.D.N.Y. Mar. 28, 2022) (for claims that accrued on or after October 11, 2019, NYCHRL's more liberal pleading standard applies to NYSHRL retaliation claims). “[O]pposing any practice can include situations where a person, before the retaliatory conduct occurred, merely made clear her disapproval of the defendant's discrimination by communicating to him, in substance, that she thought his treatment of the victim was wrong.” Lettieri v. Anti-Defamation League Found., No. 22-CV-09889 (PAE), 2023 WL 5152447, at *6 (S.D.N.Y. Aug. 10, 2023) (quoting Mihalik, 715 F.3d at 112) (alterations omitted).
Despite this broader definition for retaliation, the Court finds that Plaintiff's state and city retaliation claims fail for the same reasons as her federal claims. Namely, she has not plausibly alleged that any retaliatory action was taken against her because she protested or opposed statutorily prohibited discrimination.
V. Leave To Amend
To the extent the Court recommends dismissal of any of Plaintiff's claims, Plaintiff requests leave to amend. (Pl.'s Opp. Mem. at 26.) The Second Circuit has counseled strongly against the dismissal of claims with prejudice prior to “the benefit of a ruling” that highlights “the precise defects” of those claims. See Lorely Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190-91 (2d Cir. 2015); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“It is the usual practice upon granting a motion to dismiss to allow leave to replead.”); Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave [to amend] when justice so requires.”). However, “[l]eave may be denied for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (internal quotation marks omitted).
The Court recommends granting Plaintiff leave to amend with the exception of any Title VII, ADA or Rehabilitation Act claims against the Individual Defendants, as amending those claims would be futile. See Oparaji v. New York City Dep't of Educ., 172 Fed.Appx. 352, 355 (2d Cir. 2006).
CONCLUSION
For the reasons set forth above, it is respectfully recommended that Defendants' motions be GRANTED and that Plaintiff be granted leave to amend.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1). Any requests for an extension of time for filing objections must be addressed to Judge Gardephe.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).