Case Information
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ROSARY BERTUZZI,
Plaintiff,
REPORT AND RECOMMENDATION -against- CV 17-4256 (SJF) (AKT) COPIAGUE UNION FREE SCHOOL DISTRICT,
BOARD OF EDUCATION OF COPIAGUE UNION
FREE SCHOOL DISTRICT, DR. KATHLEEN
BANNON, TODD ANDREWS, and MICHELLE
BUDION, Individually, and as Aiders and Abettors,
Defendants.
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A. KATHLEEN TOMLINSON, Magistrate Judge:
I. P RELIMINARY S TATEMENT
On July 18, 2017, Rosary Bertuzzi (“Bertuzzi” or “Plaintiff”) commenced this action against Copiague Union Free School District (the “District”), the Board of Education of Copiague Union Free School District (the “Board”), Superintendent Kathleen Bannon (“Superintendent Bannon” or “Bannon”), Assistant Superintendent for Human Resources Todd Andrews (“Assistant Superintendent Andrews” or “Andrews”), and District Coordinator of Foreign Language Michelle Budion (“Foreign Language Coordinator Budion” or “Budion”) (collectively, “Defendants”). [1] Plaintiff claimed violations of her constitutional, statutory, and common law rights, including employment discrimination. See Compl. [DE 1]. Subsequently, Plaintiff filed the First Amended Verified Complaint (“Amended Complaint”), the operative pleading here, on August 16, 2018. See Am. Compl. [DE 26]. The Amended Complaint sets forth numerous federal and state causes of action, namely, violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq .; the Due Process Clause of the Fifth and Fourteenth Amendments; the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. L. § 296 et seq. ; and the New York State Constitution. See generally id .
Presently before the Court, on referral from Judge Feuerstein for a report and recommendation, is Defendants’ Motion to Dismiss the Amended Complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim upon which relief can be granted.
For the reasons which follow, the Court respectfully recommends to Judge Feuerstein that Defendants’ motion to dismiss be GRANTED, in part, and DENIED, in part.
II. B ACKGROUND
A. Factual Background
Unless otherwise noted, the following facts are drawn from the Amended Complaint and are accepted as true for purposes of the instant motion.
Plaintiff has been employed by the District as a foreign language teacher since September 1986. Am. Compl. ¶ 16. In 1998, Plaintiff suffered severe injuries in connection with a car accident which resulted in several disabilities, including, inter alia, chronic intractable neck pain from a cervical disc disorder, degenerative disc disease and herniated discs. Id. ¶¶ 17-18. Plaintiff alleges that her disabilities are “chronic” and “permanent” “medical impairments” which affect and limit her major life activities and prevent her from performing a variety of tasks centrally important to her life. Id. ¶¶ 74-75. According to Plaintiff, her disabilities “cannot be completely corrected by medicine or devices” and the conditions are exacerbated by repeated, consistent, and persistent activity, such as moving in “small spurts on a consistent basis” throughout the school year. Id. ¶¶ 20, 75-76.
Plaintiff maintains that she is a qualified individual with a disability covered under the ADA and NYSHRL and that she has been able to perform the essential functions of her position with reasonable accommodation at all relevant times. Id. ¶¶ 25, 78, 80, 81, 159. Her treating physicians have clearly and repeatedly advised the District that she “is more than capable of performing the essential functions of her position” if she is permitted to teach and prepare lessons in a single classroom. Id. ¶ 21
Plaintiff alleges that since her injuries in 1998, the District has engaged in a discriminatory pattern and practice of refusing to provide her with reasonable accommodation. Id. ¶ 22. The Amended Complaint states that “almost every year since [she] first requested reasonable accommodation . . . as prescribed by her medical professionals, the District has refused to provide it and/or taken retaliatory action . . . for her [] requests.” Id. ¶ 23. Plaintiff highlights the following alleged retaliatory acts: (1) reassigning her to a classroom requiring excessive walking while pushing a materials cart; (2) denying her extra compensation and advancement opportunities; (3) disposing of her teaching materials; (4) making disparaging remarks about her disabilities during year-end evaluations; (5) creating baseless allegations about her; (6) intimidating her; and (7) making discriminatory comments about her based on her need for reasonable accommodation. Id. ¶ 26.
According to the Amended Complaint, the District required the Plaintiff to submit medical documentation concerning her disabilities on an annual basis. However, Defendants refused to timely provide her with reasonable accommodation, acquiescing only when threatened with legal action. Id. ¶¶ 28-29. Plaintiff alleges that Defendants followed this pattern each year, including 2013, 2014 and 2015, further exacerbating her disabilities in an effort to constructively discharge her or force her to retire. Id. ¶ 30-34. The specific discriminatory and retaliatory acts alleged for the 2014-2015, 2015-2016, 2016-2017, and 2017-2018 school years follow here. See generally Am. Compl .
1. 2014-2015 School Year Up to and throughout the 2014-2015 school year, Plaintiff alleges that she was harassed in retaliation for requesting reasonable accommodation, including being assigned a “disproportionately high number of learning disabled, delinquent, and/or remedial students relative to other similarly situated non-disabled foreign language teachers.” Id. ¶ 36.
2. 2015-2016 School Year During the 2015-2016 school year, Plaintiff asserts that Defendants denied her request for reasonable accommodation and rejected her efforts to engage in an interactive process, without explanation. Id. ¶¶ 39-40. Plaintiff contacted Superintendent Bannon and threatened legal action, after which the District “targeted [Plaintiff] by engaging in informal and unannounced observations/evaluations of her teaching performance, purportedly in violation of the Collective Bargaining Agreement between the teachers’ union and the District (the “CBA”).” Id . ¶¶ 41-43.
Plaintiff alleges that in or around late 2015, former high school Assistant Principal Jeffrey Myers (“Assistant Principal Myers” or “Myers”) conducted one such observation of her teaching performance in order to intimidate and harass her. Id. ¶ 44. Myers did not inform Plaintiff that she had been observed nor did he provide any feedback, constructive or otherwise. Id. Plaintiff further claims that in or around January of 2016, Assistant Principal Myers observed her for an entire period from a chair in Plaintiff’s classroom. Id. ¶ 45. Myers advised that his visit had been an “unannounced, informal observation” and that he had rated Plaintiff “ineffective.” Id. ¶ 45. Pursuant to the CBA, an “unannounced, informal observation” should last only ten minutes and should be conducted as a “walk-through.” Id. Assistant Principal Myers’ “ineffective” rating was ultimately expunged from Plaintiff’s record since the visit was conducted in contravention of the CBA. Id. ¶ 47. Plaintiff asserts that Myers’ 2016 observation was conducted in order to create a pretextual reason to terminate and/or discipline her in retaliation for her request for reasonable accommodation and to create a hostile work environment in an ongoing effort to force her to resign or retire. Id. ¶¶ 48-49.
In sum, Plaintiff contends that she was evaluated on four separate occasions, including evaluations by Principal Agosta and/or Foreign Language Coordinator Budion. Id. ¶¶ 51-52. According to Plaintiff, other similarly situated non-disabled teachers are not evaluated more than twice during a given school year pursuant to District policy and practice. Id. ¶ 51-54. Plaintiff maintains that Defendants’ departure from District policy and practice was a purposeful attempt to (1) create a pretextual reason to terminate and/or discipline her because of her disability, (2) create a hostile workplace, and/or (3) in retaliation for her requesting reasonable accommodation. Id. ¶ 53. Despite Defendants’ alleged effort to create a pretext for discipline and/or termination, Plaintiff states that she was found to be “effective” in her Annual Professional Performance Review. Id. ¶ 55.
3. 2016-2017 School Year During the summer of 2016, Plaintiff again submitted materials from her treating physicians documenting her disabilities and stating that she was medically able to perform the functions of her position with the reasonable accommodation of a single classroom in which to teach and prepare. Id. ¶¶ 57-58. In July 2016, Plaintiff received her 2016-2017 teaching schedule, according to which she was required to (1) “unnecessarily” switch classrooms with another teacher in the middle of the day and (2) lift or push a cart containing heavy materials. Id. ¶¶ 59-60. Plaintiff asked Principal Agosta to amend her schedule but she was altogether ignored. Id. ¶¶ 60-62. Plaintiff points out that in previous school years, the District had allowed her to prepare and teach in a single classroom as a reasonable accommodation. Id. ¶ 68. According to Plaintiff, the District implemented the new schedule to harass, discriminate, and retaliate against her, “knowing that it would exacerbate Plaintiff’s disability and/or cause [her] to become permanently disabled, thereby forcing [her] to retire.” Id. ¶ 63 .
Since she was unable to teach and prepare in a single classroom, Plaintiff says she was forced to prepare her lessons in the Languages Other Than English (“LOTE”) room. Id. ¶¶ 64-66. On September 6, 2016 – the first day of classes for the 2016-2017 school year – Plaintiff says she fell while preparing in the LOTE room, severely exacerbating her disabilities. Id. ¶ 69. She claims that “but for the [D]efendants’ willful, knowing, and intentional failure to provide [her] with the reasonable medical accommodation prescribed by her treating medical professionals, she would not have fallen, and her disabilities would not have become exacerbated.” Id. ¶71. Plaintiff further asserts that as a result of Defendants’ intentional discriminatory acts, she has been subjected to intentional infliction of emotional and physical distress. Id. ¶ 72.
Although she sought to engage in an interactive process, which Defendants rejected, Plaintiff says she was placed on Family and Medical Leave retroactively and prematurely, causing her to lose accrued sick days. Id. ¶ 73. During the 2016-2017 school year, she made multiple requests to return to her normal duties, all of which were ignored or summarily denied by Defendants. Id. ¶ 85. As a result, Plaintiff states that she was forced to utilize sick days for which she would have otherwise been compensated. Id. By forcing her to exhaust earned and accrued sick leave, Plaintiff says Defendants prevented her from being compensated for contractual compensation without due process. Id. ¶¶ 94-95.
Following her September 6, 2016 injury, Plaintiff notified the District through counsel that she wished to return to work as soon as medically possible. Id. ¶ 88. Counsel for the District advised Plaintiff in April 2017 that the District required medical clearance from Plaintiff’s treating physicians. Id. ¶ 89. Plaintiff’s counsel responded that Plaintiff “is medically cleared to return to work on April 24, 2017, so long as she [is] provided the same previously stated reasonable accommodation that her disabilities require.” Id. ¶ 90. According to Plaintiff, the District refused to accommodate her in an attempt to force her to retire or resign. Id. ¶¶ 87-94.
Plaintiff alleges that the District further discriminated and retaliated against her by posting her teaching position as vacant on a job posting website. Id. ¶¶ 96-97. In addition, Plaintiff claims that she was discriminated against at a teachers’ conference on May 26, 2017. Id. ¶¶ 98-99. When Plaintiff appeared for the conference, she was informed that she should not have appeared and was separated from her department. Id. ¶ 100.
4. 2017-2018 School Year – After the Instant Lawsuit Was Filed Prior to the commencement of the 2017-2018 school year, Plaintiff provided the District with medical documentation from her treating physicians advising that her disabilities required a reasonable accommodation in the form of a single classroom in which to teach and prepare lessons. Id. ¶ 115. According to Plaintiff, Defendants refused to provide her with her requested accommodation and failed to engage in any interactive process. Id. ¶¶ 116, 121. During the 2017-2018 school year, Plaintiff returned to work as a Foreign Language Teacher without any reasonable accommodation. Id. ¶¶ 102-03. Upon Plaintiff’s return, Defendants continued their campaign of discrimination, retaliation, and harassment, “engag[ing] in material and severe disparate treatment, retaliation, and discriminatory” acts in an effort to force Plaintiff to resign or retire. Id. ¶¶ 105-08.
Plaintiff was issued a new teaching schedule which required her to move to a different classroom every period. Id. ¶¶ 109-110. Defendants directed her not to store her materials in any of her classrooms, yet “many similarly situated non[-]disabled teachers . . . teach all of their teaching periods in a single classroom,” storing their teaching materials in the same classroom in which they teach. Id. ¶¶ 113-14, 126. Plaintiff further states that the classrooms in which she teaches are used by teachers who teach all their periods in those classrooms. Id. ¶ 125. She maintains that the new schedule was designed to exacerbate her disabilities and constructively discharge her. Id. ¶ 122.
Further, on or about October 24, 2017, Plaintiff claims that she was harassed by Assistant Principal Remenick. Id. ¶ 134. During her first-period class that day, Plaintiff disciplined a student who was being defiant and disrespectful. Id. ¶ 129. She called security to have the student removed from the class, whereupon a security officer arrived with Mr. Remenick. Id. ¶¶ 130-31. According to Plaintiff, Mr. Remenick reprimanded her in the presence of the student, the student’s aide, and other personnel, stating that Plaintiff “had problems” and was at fault. Id. ¶¶ 132-33.
Defendants have continued to give Plaintiff undesirable and discriminatory assignments as part of a plan to constructively discharge her, including: (1) assigning her a disproportionate number of remedial, delinquent, or special needs students; (2) targeting her with observations and evaluations regarding her teaching performance and holding her to higher standards than other similarly situated non-disabled teachers; (3) requiring her to work with the Spanish 1 program and middle school teachers instead of the rest of the Italian department; and (4) directing her to clean out a lateral filing cabinet, as a result of which Plaintiff suffered excruciating pain. Id. ¶¶ 136-45.
Generally, Plaintiff contends that each of Defendants’ discriminatory acts was committed in willful retaliation against her for filing the instant lawsuit. Id. According to Plaintiff, “[b]y letter dated February 19, 2018, Plaintiff’s treating spinal specialist, Laurence E. Mermelstein, M.D., [notified] [D]efendants that, as a result of the exacerbation of her disabilities, [Plaintiff] would have to miss work ‘because the workplace is ignoring the recommendation of this office.’” Id. ¶ 148. Plaintiff states that “as predicted by [her] treating medical professionals,” Defendants’ acts have severely exacerbated her disabilities. Id. ¶ 149. Finally, Plaintiff states that she has notified the District of her retirement, effective June 2018, and that she would not have retired but for Defendants’ ongoing pattern and practice of pervasive harassment, discrimination, retaliation, and refusal to accommodate. See id. ¶ 159.
B. Procedural History
On November 17, 2016, Plaintiff concurrently filed a charge of discrimination with the New York State Division of Human Rights (“NYSDHR”) and the Equal Employment Opportunity Commission (“EEOC”). Id. ¶ 13. The EEOC granted Plaintiff’s request to administratively dismiss her charges on June 15, 2017 so that she could pursue litigation. The agency issued Plaintiff a “right-to-sue” letter. Id. ¶ 14; see EEOC Dismissal and Notice of Rights, annexed as Exhibit 1 to the Amended Complaint. Thereafter, on July 18, 2017, Plaintiff commenced the current action by filing the Initial Complaint, setting forth ten causes of action. See Compl. Defendants moved to dismiss the Initial Complaint on December 27, 2017 for failure to state a claim and for lack of jurisdiction. See Defendants’ First Notice of Motion to Dismiss [DE 12]. On March 26, 2018, Judge Feuerstein referred Defendants’ December 27, 2017 motion to this Court for a report and recommendation. March 26, 2018 Referral Order. Shortly thereafter, on April 12, 2018, Plaintiff moved to amend the Initial Complaint. See Plaintiff’s First Motion to Amend [DE 21]. The Court conducted a status conference with the parties on August 9, 2018 at which time the parties agreed that: (1) Defendants’ December 27, 2017 motion to dismiss would be deemed moot; (2) Plaintiff would be permitted to file the Amended Complaint; and (3) Defendants’ right to move to dismiss the Amended Complaint would be preserved. See August 9, 2018 Civil Conference Minute Order [DE 24]. In addition, the Court set a briefing schedule for Defendants’ anticipated motion to dismiss the Amended Complaint. See id . Pursuant to the Court’s Scheduling Order, Plaintiff filed the Amended Complaint on August 16, 2018, and Defendants’ Motion to Dismiss the Amended Complaint was fully briefed on October 29, 2018. Judge Feuerstein then referred Defendants’ motion to this Court for a report and recommendation as to whether the motion should be granted. III. D ISCUSSION
A. Applicable Legal Standards
In deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court must liberally
construe the claims, accept all factual allegations in the complaint as true, and draw all
reasonable inferences in favor of the plaintiff.
See Aegis Ins. Servs., Inc. v. 7 World Trade Co.,
L.P.
,
In adjudicating a Rule 12(b)(6) motion to dismiss, the Court must limit itself to facts
alleged in the complaint, which are accepted as true; to documents attached to the complaint as
exhibits or incorporated in the complaint by reference; to matters of which judicial notice may be
taken; or to documents whose terms and effect are relied upon heavily in the complaint and, thus,
are rendered “integral” to the complaint.
Chambers v. Time Warner, Inc.
,
With this standard in mind, the Court now turns to the Plaintiff’s claims.
B. ADA Claims
In her first cause of action, Plaintiff asserts a variety of claims under the ADA. Am. Compl. ¶¶ 160-66. Although Plaintiff fails to expressly identify any particular causes of action, the Court construes Count I as setting forth claims for discrimination, reasonable accommodation, retaliation, and hostile work environment. Id. The Court considers each in turn below.
1. ADA Disability Discrimination Claim The ADA provides that “[n]o covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The ADA defines discrimination on the basis of disability as, among other things, “limiting, segregating, or classifying a[n] . . . employee in a way that adversely affects the opportunities or status of such applicant or employee because of the disability of such . . . employee.” 42 U.S.C. § 12112.
Disability discrimination is analyzed under the three-part, burden-shifting framework
established by the Supreme Court in
McDonnell Douglas Corp. v. Green
,
In order to make out a
prima facie
case of disability discrimination under the ADA, a
plaintiff must demonstrate that: (1) her employer is subject to the ADA; (2) she was a person
with a disability within the meaning of the ADA; (3) she was otherwise qualified to perform the
essential functions of her job, with or without reasonable accommodation; and (4) she suffered
an adverse employment action because of her disability.
Morris v. Town of Islip,
No. 12–CV–
2984,
“However, the survival of a complaint under Rule 12(b)(6) scrutiny in an employment
discrimination case ‘does not rest on whether it contains specific facts establishing a prima facie
case under
McDonnell Douglas
.’”
Figueroa v. RSquared NY, Inc.
,
Instead, “[the Court] consider[s] only whether the complaint includes factual allegations
sufficient ‘to raise a right to relief above the speculative level.’”
Gonzalez
,
Here, Defendants do not contest, and the Court is satisfied, that Plaintiff has sufficiently pleaded that (1) Plaintiff’s employer is subject to the ADA, (2) Plaintiff is a person with a disability within the meaning of the ADA, and (3) Plaintiff was otherwise qualified to perform the essential functions of her job with reasonable accommodation. See generally Defendants’ Memorandum of Law in Support of Motion to Dismiss (“Defs.’ Mem.”) [DE 32]. As such, the central question with respect to Plaintiff’s disability discrimination claim under the ADA is whether Plaintiff has pleaded an adverse employment action taken because of her disabilities.
“A plaintiff suffers an adverse employment action under the ADA when he or she
endures a materially adverse change in the terms and conditions of employment.”
Vale v. Great
Neck Water Pollution Control Dist.
,
Defendants argue here that Plaintiff cannot show she suffered any adverse employment action. Defs.’ Mem . at 4. According to Defendants, as relevant here, Plaintiff alleges that she was discriminated against (1) by having her class observed more times then called for by District policy or custom and (2) by being assigned a disproportionate number of special needs students -- neither of which resulted in any adverse employment action. Id. Defendants assert that the Amended Complaint is devoid of any plausible allegation of a material alteration to the terms and conditions of Plaintiff’s employment as a result of her disability. Id. Defendants contend that the only allegation made by Plaintiff with regard to any “loss” is Plaintiff’s contention that she was forced to utilize sick leave given her refusal to return to work as of April 24, 2018. Id. at 5.
According to the Plaintiff, Defendants’ various unlawful acts, as pleaded in the Amended Complaint – including repeatedly ignoring Plaintiff’s doctors’ statements, observing and evaluating Plaintiff more frequently than other non-disabled teachers, assigning Plaintiff a disproportionate number of remedial and special needs students, and otherwise harassing and bullying Plaintiff – rendered her workplace increasingly intolerable and hostile to such an extent as to alter the terms and conditions of her employment. See Memorandum of Law in Opposition to Defendants’ Motion to Dismiss (“Pl.’s Opp’n”) [DE 35] at 20-21. Notably, however, Plaintiff concedes that “until recently, there was no overt adverse employment action, and, notwithstanding the constant discriminatory and retaliatory harassment . . . [she] did not bring legal action . . . [because] any legal action would have been futile as defendants provided her with the reasonable accommodation she required.” Id. at 11. Nevertheless, Plaintiff maintains that she suffered adverse employment action by (1) being denied a reasonable accommodation and (2) being assigned a disproportionate number of special needs students resulting in a disproportionately heavy workload. [2]
Indeed, both allegations are sufficient to plead an adverse employment action. The
Second Circuit has held that “an employer’s failure to make a reasonable accommodation,
particularly when coupled with a refusal to engage in a sufficient interactive process, makes out a
prima facie case of disability discrimination where the Plaintiff has also made a sufficient
showing that,
inter alia
, she is qualified for the position at issue.”
McBride v. BIC Consumer
Prod. Mfg. Co.
,
working conditions so intolerable that the employee is forced into an involuntary resignation.’”)
(quoting
Pena v. Brattleboro Retreat,
Notably, an ADA constructive discharge claim must fail where the plaintiff does not
establish a hostile work environment claim.
Hong Yin v. N. Shore LIJ Health Sys.
, 20 F. Supp.
3d 359, 374 (E.D.N.Y. 2014) (citing
Zick v. Waterfront Comm. of New York Harbor,
2012 WL
4785703, at *7 (S.D.N.Y. Oct. 4, 2012);
see also Murphy v. BeavEx, Inc.,
Here, however, since Plaintiff has sufficiently pleaded adverse employment action to make out an ADA discrimination claim, the Court need not analyze whether Plaintiff has also alleged constructive discharge at this time. The Court will separately address Plaintiff’s hostile work environment claim below.
For the foregoing reasons, the Court respectfully recommends to Judge Feuerstein that Defendants’ motion to dismiss Plaintiff’s ADA discrimination claim under Count I be DENIED.
2.
Reasonable Accommodation Claim
To set forth a
prima facie
case for a reasonable accommodation claim, a plaintiff must
show that: (1) she is a person with a disability under the meaning of the ADA; (2) an employer
covered by the statute had notice of her disability; (3) with reasonable accommodation, she could
perform the essential functions of the job at issue; and (4) the employer has refused to make such
accommodations.
Graves v. Finch Pruyn & Co.,
Here, Plaintiff has adequately alleged a failure to accommodate claim under the ADA. As noted, Defendants do not contest, and the Court is satisfied, that Plaintiff has sufficiently pleaded that Plaintiff’s employer is subject to the ADA, that Plaintiff is a person with a disability within the meaning of the ADA, and that Plaintiff was otherwise qualified to perform the essential functions of her job with reasonable accommodation. As relevant here, Plaintiff alleges that (1) following her 1998 car accident, she annually provided medical documentation identifying her disability and supporting her request for reasonable accommodation, and (2) until the 2016-2017 school year, she was ultimately provided her requested accommodation. Am. Compl. ¶¶ 22, 32, 33, 39, 57, 58, 63. As a result, Plaintiff has sufficiently alleged that Defendants had notice of her disability. Further, as noted above in connection with Plaintiff’s ADA discrimination claim, Plaintiff has adequately pleaded that Defendants denied her a reasonable accommodation. Specifically, Plaintiff claims that “almost every year since [she] first requested reasonable accommodation . . . the District has refused to provide it,” including up to and during the 2016-2017 school year, when Plaintiff alleges that the District denied her requests for reasonable accommodation and rejected her efforts to engage in an interactive process. Id . ¶¶ 22-23, 39-40, 57-66.
Defendants point out that (1) until the 2016-2017 school year, Plaintiff was provided with her requested accommodation, namely, one classroom in which to teach and prepare, and (2) for the 2016-2017 school year, Plaintiff was provided with a reasonable alternative accommodation — specifically, a teaching schedule according to which she was asked to change classrooms only once during the school day. Defs.’ Memo at 11-12. For those reasons, Defendants dispute whether and to what extent Plaintiff was provided reasonable accommodation. However, “whether an accommodation request is reasonable is more appropriately determined on summary judgment or by the factfinder at trial.” Vale v. Great Neck Water Pollution Control Dist. , 80 F. Supp. 3d 426, 438 (E.D.N.Y. 2015). In these circumstances, Defendant has not satisfied the weighty burden of showing that the fact-intensive inquiry prerequisite to a finding of reasonable accommodation redounds in its favor.
Accordingly, the Court respectfully recommends to Judge Feuerstein that Defendants’ motion to dismiss Plaintiff’s ADA accommodation claim as set forth in Count I be DENIED.
3.
Retaliation Claim
“The ADA also prohibits retaliation against an individual who has ‘opposed any act or
practice made unlawful under the ADA.’”
Vale
,
With regard to the first element – protected activity – Plaintiff alleges that she engaged in protected activity when she requested reasonable accommodation, threatened to take legal action against the District to compel them to provide reasonable accommodation, and commenced the instant lawsuit. Plaintiff generally asserts that “almost every year since [she] first requested reasonable accommodation . . . the District has refused to provide it/and or taken retaliatory action.” Am. Compl. ¶ 23. Further, Plaintiff underscores specific retaliatory action taken against her after she requested reasonable accommodations and/or threatened legal action to compel such reasonable accommodations up to and throughout the 2014-2015, 2015-2016, and 2016-2017 school years. Id. ¶¶ 36, 41-43, 59-63. Plaintiff also alleges that she was retaliated against after filing the Initial Complaint in the instant action. Id. ¶ 108.
It is well-established that “[r]equests for disability accommodation and complaints,
whether formal or informal, about working conditions related to one's alleged disability are
protected activities.”
Gorbea v. Verizon N.Y., Inc.,
No. 11–CV–3758,
As to the second element – employer’s knowledge of Plaintiff’s protected activity – Defendants do not dispute that they were aware of Plaintiff’s protected acts. See generally Defs.’ Mem. Plaintiff contends that she requested reasonable accommodation for her disabilities on an annual basis in advance of the rising school year following her 1998 car accident and submitted medical documentation which identified her disabilities and set forth a medically necessary accommodation of one classroom in which to prepare and teach. Am. Compl. ¶¶ 22, 28-29. The factual allegations evidence Defendants’ knowledge of Plaintiff’s protected activity in that: (1) Defendants are alleged to have taken action in response to Plaintiff’s requests, including denying those requests in the first instance and, ultimately, beginning in 2015-2016, denying them altogether, id. ¶¶ 39-40, 57-68; (2) Plaintiff alleges she personally communicated a threat of legal action to Bannon, id. ¶¶ 29-30; and (3) Defendants moved to dismiss the Initial Complaint on December 27, 2017, before Plaintiff filed the Amended Complaint, in which Plaintiff alleges additional retaliation for bringing the lawsuit, see Defendants’ First Notice of Motion to Dismiss. Indeed, Defendants concede that the District responded to Plaintiff’s requests for reasonable accommodation and related complaints, asserting that Plaintiff was provided with necessary medical accommodations – including reasonable alternate accommodation – during her tenure at the District. Defs.’ Mem. at 11-12. Plaintiff has therefore adequately pleaded Defendants’ awareness of Plaintiff’s protected activity.
The Court next considers the third element – alleged “adverse employment actions”
supporting the Plaintiff's ADA retaliation claim. “Unlike the requirements for a standard
disability-based discrimination claim, a plaintiff pursuing a retaliation claim need not allege that
he or she was actually ‘disabled’ within the meaning of the ADA.”
Vale
,
Significantly, “[u]nlike claims of discrimination, which limit what qualifies as an
‘adverse employment action’ to changes in the terms and conditions of employment, adverse
employment actions in the context of a claim of retaliation are much broader.”
Jeffries v.
Verizon,
No. CV 10–2686,
The Court has already found that Plaintiff alleged sufficient facts under the more
demanding standard for traditional claims of disability discrimination to support certain “adverse
employment actions.” Therefore, the actions already addressed by the Court, including being
denied reasonable accommodation and being assigned a disproportionate workload, qualify as
“adverse employment actions” under the more lenient standard for retaliation claims under the
ADA.
See Vale
,
Plaintiff alleges that during the 2015-2016 school year, she was targeted with excessive
evaluations and observations in contravention of the CBA after she contacted Superintendent
Bannon and threatened legal action to compel the provision of a reasonable accommodation.
Am. Compl. ¶¶ 41-47. Although it is well-settled that evaluations, even inaccurate evaluations,
do not rise to the level of adverse action within the context of a traditional discrimination claim,
s
ee Hong Yin v. N. Shore LIJ Health Sys.
,
Finally, the Court considers the fourth element – causation. “[A] plaintiff alleging
retaliation . . . must show that retaliation was a ‘but-for’ cause of the adverse action, and not
simply a ‘substantial’ or ‘motivating’ factor in the employer's decision.”
Laface
, 349 F. Supp. 3d
at 150 (quoting
Kwan v. Andalex Grp. LLC
,
Here, Plaintiff’s allegations regarding Defendants’ retaliatory conduct are sufficient to
establish a causal connection at this stage. Plaintiff alleges that leading up to almost every
school year since she first sustained her injuries, Defendants refused to provide a reasonable
accommodation.
See
Am. Compl. ¶ 23. Further, Plaintiff alleges that in response to Plaintiff’s
requests for reasonable accommodation leading up to the 2014-2015 and 2016-2017 school
years, Defendants issued Plaintiff a teaching schedule which required Plaintiff to teach a
disproportionately high number of special needs students.
Id.
¶¶ 36-40, 57-62, 154. In addition,
Plaintiff states that in response to commencing the instant lawsuit in June 2017, Defendants
issued a new teaching schedule that required Plaintiff to move to a different classroom every
period during the school day.
Id.
¶¶ 109-10. As such, this Court concludes that the temporal
proximity of Defendant’s alleged retaliatory acts in relation to Plaintiff’s alleged protected
activity is sufficient to support an inference of causation. Although the Second Circuit “has not
drawn a bright line defining, for the purposes of a prima facie case, the outer limits beyond
which a temporal relationship is too attenuated to establish causation, [the Court has] previously
held that five months is not too long to find the causal relationship.”
Gorzynski v. JetBlue
Airways Corp.
,
Accordingly, Plaintiff has adequately alleged ADA retaliation. However, the Court finds that Plaintiff has not adequately pleaded causality with respect to the allegation that she was targeted with observations and evaluations during the 2015-2016 school year following a threat of legal action communicated to Superintendent Bannon. The factual allegations do not indicate sufficient temporal proximity, nor do they suggest any connection between Plaintiff’s threat to take legal action and the subsequent increased scrutiny. Indeed, Plaintiff asserts generally that each year after her 1998 car accident, she threatened legal action to obtain the reasonable accommodation prescribed by her medical professionals. Id. ¶ 29. The factual allegations do not indicate that the increased observations and evaluations conducted during the 2015-2016 school year were related to, or resulted from, Plaintiff’s threat -- which according to Plaintiff was a routine procedure she employed to obtain her requested reasonable accommodation.
Accordingly, to the extent set forth above, the Court respectfully recommends that Defendants’ motion to dismiss Plaintiff’s ADA retaliation under Count 1 claim be DENIED.
4. Hostile Work Environment
Previously, the Second Circuit assumed – without deciding – that hostile work
environment claims are cognizable under the ADA.
Flieger v. E. Suffolk BOCES
, 693 Fed.
App'x 14, 19 (2d Cir. 2017). In March 2019, however, the Second Circuit followed a number of
its sister circuits and definitively held that hostile work environment claims are actionable under
the ADA.
Fox v. Costco Wholesale Corp.,
To plead a hostile work environment claim, a plaintiff must allege that “the workplace is
permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or
pervasive to alter the conditions of [her] employment.”
Smith v. Town of Hempstead Dep't of
Sanitation Sanitary Dist. No. 2
,
To determine whether the conduct alleged is sufficiently severe or pervasive, courts look
to the following non-exhaustive factors: “(1) the frequency of the discriminatory conduct; (2) its
severity; (3) whether the conduct was physically threatening or humiliating, or a mere offensive
utterance; (4) whether the conduct unreasonably interfered with plaintiff’s work; and (5) what
psychological harm, if any, resulted.”
Sotomayor v. City of N.Y.
,
Here, Plaintiff contends that Defendants’ various unlawful acts -- including repeatedly ignoring Plaintiff’s doctors’ statements, observing and evaluating Plaintiff more frequently than other non-disabled teachers, assigning Plaintiff a disproportionate number of remedial and special needs students, and otherwise harassing and bullying Plaintiff -- rendered her workplace increasingly intolerable and hostile to such an extent as to alter the terms and conditions of her employment. Pl.s’ Opp’n at 20-21. The factual allegations concerning Plaintiff’s hostile work environment claim state that: (1) “[e]ach year that the district granted plaintiff’s request for reasonable accommodation, defendants would invariably harass [her] . . . so as to render her . . . work environment increasingly hostile in an effort to constructively discharge her,” id . ¶ 34; and (2) the District’s “deviation from [its] policy regarding evaluations . . . was done purposefully . . . [to] create a hostile workplace,” ¶ 53. In addition, Plaintiff claims generally that Defendants’ “continuous and ongoing unlawful discrimination, retaliation and pervasive harassment,” id. ¶¶ 164-66, rendered her workplace hostile, including being reprimanded in front of her class, id. ¶¶ 131-34, and dismissed from a teachers’ conference, id. ¶¶ 98-100.
Practically speaking, Plaintiff contends that the conditions of her employment were altered for the following reasons: (1) the District annually denied her requested reasonable accommodation in the first instance, acquiescing only after the submission of medical documentation and the threat of legal action, id. ¶¶ 28-29; (2) the District altogether denied her requested reasonable accommodation beginning in the 2016-2017 school year, id. ¶¶ 39-40, 57- 58, 116, 121; (3) the District deviated from its teacher evaluation/observation policy and evaluated/observed Plaintiff four times, instead of two times, rating Plaintiff ineffective on one occasion, id. ¶¶ 41-49; (4) Plaintiff was assigned a disproportionate number of special needs students, increasing Plaintiff’s workload, id. ¶ 36; (5) Plaintiff was assigned a teaching schedule that required excessive movement throughout the day, id. ¶¶ 59-60; 109-10; and (6) Plaintiff was otherwise bullied and harassed, including being told that she should not have appeared at a teachers’ conference in May 2016 and being reprimanded in October 2017 in front of her class, id. ¶¶129-34.
Although Plaintiff’s complaints may be sufficient to make out claims for discrimination
and retaliation, the factual allegations do not sufficiently allege conduct which is so objectively
severe or pervasive as to alter the conditions of Plaintiff’s employment. Significantly, the
Second Circuit has held that even where a plaintiff contends Defendants “excluded her from
meetings, excessively criticized her work, refused to answer work-related questions, arbitrarily
imposed duties outside of her responsibilities, threw books, and sent rude emails to her,” the
factual allegations did not rise to the level of hostile work environment under Title VII.
See
Fleming v. MaxMara USA, Inc.
,
Significantly, “[s]everity is a hallmark of a hostile work environment claim. Such claims
‘are not intended to promote or enforce civility, gentility or even decency.’”
Acosta
, 2012 WL
1506954, at *7 (quoting
Ennis v. Sonitrol Mgmt. Corp.
, No. 02–CV–9070,
Accordingly, for the foregoing reasons, the Court respectfully recommends that Defendants’ motion to dismiss Plaintiff’s ADA hostile work environment claim as set forth in Count I be GRANTED and the claim be dismissed.
5. Timeliness of ADA Claims
a. Timeliness of Administrative Charge Defendants underscore that the statute of limitations for discrimination and retaliation claims pursuant to the ADA is three years and assert that any claim arising before July 18, 2014 — three years before Plaintiff commenced the instant action — is time-barred. Defs.’ Mem. at 5-6. Further, to the extent Plaintiff filed her EEOC complaint more than 300 days subsequent to any act of alleged discrimination or retaliation, Defendants contend that such claims are likewise precluded. Id . at 6. Defendants state that Plaintiff omits from her pleadings the date she filed her EEOC complaint and they point out that her EEOC charge bears a 2017 filing date. Id. According to Defendants, “even assuming [] [P]laintiff filed her EEOC complaint on the earliest date possible, Monday, January 2, 2017, any alleged incidents of discrimination or retaliation that occurred prior to March 8, 2016 (300 days prior to January 2, 3017) are time barred.” Id.
In opposition, Plaintiff argues that Defendants have pursued a discriminatory agenda, subjecting her to an ongoing and continuous pattern and practice of acute harassment and retaliation, sufficient to constitute a “continuing violation.” Pl.’s Opp’n at 10-13. On that basis, Plaintiff argues that while acts falling within three years prior to November 17, 2016 are timely, “this date does not cap the limit for damages.” Id . at 15. Plaintiff asserts that she only filed a complaint with the EEOC and New York State Division of Human Rights on November 17, 2016. See id. at 13-14; see also Am. Compl. ¶¶ 13-14.
In order for a plaintiff to bring an ADA claim in federal court, she must file
administrative charges with the EEOC within 300 days of the alleged discriminatory act(s) and
bring suit within 90 days of obtaining a right-to-sue letter from the EEOC.
Bloom v. New York
City Bd. of Educ. Teachers' Ret. Sys. of Cty of New York,
No. 00 CIV. 2728,
In this case, the factual allegations state that “Plaintiff timely initiated this action by filing a complaint with the Equal Employment Opportunity Commission” and “the New York State Division of Human Rights on November 17, 2016.” Am. Compl. ¶ 13 and n. 1. Although Plaintiff has not attached her EEOC complaint to any filings in this action, it is apparent from the pleadings that Plaintiff filed the operative administrative charge on November 17, 2016. Id. [3] On June 15, 2017, the EEOC granted Plaintiff’s request to dismiss her charges so that she could pursue litigation and the agency issued a right-to-sue letter. Am. Compl., Ex. 1. Plaintiff commenced this action by filing the Initial Complaint on July 18, 2017. Am. Compl.
Applying the relevant time constraints, the Court notes that: (1) any alleged incidents of discrimination or retaliation which occurred prior to January 22, 2016 (300 days prior to November 17, 2016) are time-barred and (2) Plaintiff commenced this lawsuit well within the 90 days after receipt of her right-to-sue letter. The Court points out that an additional EEOC complaint is not required for acts occurring after November 17, 2016 to the extent such acts are reasonably related to the claims set forth in Plaintiff’s November 17, 2016 administrative charge.
b.
The Continuing Violation Doctrine
Plaintiff argues that acts which occurred prior to January 22, 2016 are timely under the
“continuing violation” doctrine since they are part of an ongoing practice and policy which
continues to the present day. Pl.’s Opp’n. at 14. Under the continuing violation doctrine, “if a
plaintiff has experienced a continuous practice and policy of discrimination . . . the
[3]
The Court points out that for purposes of the filing deadline, a complaint filed with
the NYSDHR “is considered to be cross-filed with the EEOC . . . .”
Morales v. City of N.Y. Dep't
of Juvenile Justice
, No. 10 Civ. 829,
commencement of the statute of limitations period may be delayed until the last discriminatory
act in furtherance of it.”
Fitzgerald v. Henderson,
As a general matter, “the continuing violation doctrine is heavily disfavored in the
Second Circuit and courts have been loath to apply it absent a showing of compelling
circumstances.”
Trinidad v. N.Y. City Dep't of Corr.,
The factual allegations raised in the Amended Complaint do not support application of
the continuing violation exception. Significantly, each of Plaintiff’s discrimination and
retaliation claims concern discrete acts. Plaintiff chiefly complains that Defendants repeatedly
failed to provide her with her requested reasonable accommodation. However, as noted above,
an employer's denial of a requested accommodation does not give rise to a “continuing
violation.”
Francis
,
Further, the other factual allegations on which Plaintiff’s ADA claims are based –
including (1) being assigned a disproportionate number of special needs students, (2) being
evaluated and observed two times more than District policy or practice, and (3) being assigned
an undesirable teaching schedule – all concern facially discrete acts.
See Casale v. Reo,
No. 04-
CV-1013,
For these reasons, the Court finds that any ADA claims concerning acts which occurred before January 22, 2016 are time-barred.
C. New York State Disability Discrimination Claims 1. As Against the District
Plaintiff also asserts claims against the District in Count V for violating the NYSHRL as
well as claims in Count VI against Bannon, Andrews, and Budion for aiding and abetting the
District. Am. Compl. ¶¶ 218-37.
[4]
As applicable here, New York State disability discrimination
claims are governed by the same legal standards as federal ADA claims.
See Parker v. Columbia
Pictures Indus.,
2. Aiding and Abetting Claims against Individual Defendants
The Court must, however, consider whether and to what extent Plaintiff has adequately
pleaded aiding and abetting as against Bannon, Andrews, and Budion. “An employee may not
be individually subject to suit as an employer under Section 296(1) of the [NYS]HRL ‘if he [or
she] is not shown to have any ownership interest or any power to do more than carry out
personnel decisions made by others.’”
Lewis v. Triborough Bridge & Tunnel Auth.,
77 F. Supp.
2d 376, 379 (S.D.N.Y.1999) (quoting
Patrowich v. Chem. Bank,
Here, Plaintiff seeks to hold Bannon, Andrews and Budion individually liable under an [5] “aiding and abetting” theory of discrimination. The Court has carefully reviewed the Amended Complaint and points out the factual allegations concerning the individually named defendants. With respect to District Superintendent Bannon, the factual allegations state that Plaintiff contacted Bannon during the 2015-2016 school year, after Plaintiff’s efforts to obtain an accommodation were denied, and threatened legal action through her union representative to obtain her requested accommodation. Am. Compl. ¶ 41. Further, the amended pleading states that after contacting Bannon to demand reasonable accommodation, and threatening legal action, “[the] District targeted [P]laintiff . . . by engaging in informal and unannounced observations/evaluations of her teaching performance.” Am. Compl. ¶ 42.
As to Assistant Superintendent Andrews, Plaintiff contends that: (1) throughout the 2016-2017 school year, he ignored Plaintiff’s request to engage in an interactive process, see id. ¶ 73; (2) he placed Plaintiff on Family and Medical Leave retroactively and prematurely – causing Plaintiff to lose accrued sick days, see id. ; (3) he approached in a hostile manner at the teachers’ conference on May 26, 2017 and informed her that she should not have attended the conference, see id. ¶ 100; and (4) he failed to respond to Plaintiff’s April 2017 request to return to return to work, see id. ¶ 204.
As for Budion, the Foreign Lanugage Coordinator and Plaintiff’s supervisor, the allegations are that: (1) in June 2015, Budion informed Plaintiff that she was assigned a disproportionate number of special needs students because of her medical accommodation, which Budion characterized as a “perk,” id. ¶ 38; and (2) during the 2015-2016 school year, “Plaintiff was evaluated and/or observed by [] Principal Agosta and/or Coordinator Budion,” id. ¶ 52.
In view of these allegations, Plaintiff has adequately pleaded the direct participation of the individual defendants in conduct giving rise to Plaintiff’s discrimination claims. Further, the Court notes that Superintendent Bannon, Assistant Superintendent Andrews, and Coordinator Budion are each alleged to have occupied supervisory positions empowered to do more than carry out personnel decisions made by others. [6] On that basis, Plaintiff has sufficiently pleaded aiding and abetting liability as to the individual defendants.
3. Condition Precedent Defendants argue that Plaintiff has failed to comply with a condition precedent in that Plaintiff never presented a notice of claim as required by § 3813 of New York Education Law (“N.Y. Educ. Law”) and General Municipal Law (“GML”) § 50-I. See Defs.’ Mem. at 22. Plaintiff responds that: (1) a notice of claim is not a condition precedent to an employment discrimination claim against a municipality or school since such conduct is not a tort under GML § 50-e and (2) in any event, Plaintiff substantially complied with § 3813 by sending a detailed letter to the District which provided the underlying factual basis concerning, inter alia , Plaintiff’s state law discrimination claims. See Pl.s’ Mem. at 16.
Section 3813 of the N.Y. Educ. Law provides in pertinent part as follows: 1. No action or special proceeding, for any cause whatever . . . shall be prosecuted or maintained against any ... board of cooperative educational services ... or any officer of a . . . board of cooperative educational services . . . unless it shall appear by and as an allegation in the complaint or necessary moving papers that a written verified claim upon which such action or special proceeding is founded was presented to the governing body . . . within three months after the accrual of such claim . . . .
2. Notwithstanding anything to the contrary hereinbefore contained in this section, no action or special proceeding founded upon tort shall be prosecuted or maintained against any of the parties named in this section or against any teacher or member of the supervisory or administrative staff or employee where the alleged tort was committed by such teacher or member or employee acting in the discharge of his duties within the scope of his employment and/or under the direction of the board of education, trustee or trustees, or governing body of the school unless a notice of claim shall have been made and served in compliance with section fifty-e of the general municipal law. Every such action shall be commenced pursuant to the provisions of section fifty-i of the general municipal law. . . .
N.Y. Educ. Law § 3813.
It is well-settled that compliance with N.Y. Educ. Law § 3813 is a condition precedent to
bringing a tort action against a school board, its members or employees.
See Caputo
, 218 F.
Supp. 3d at 193 (citing
P.J. Panzeca, Inc. v. Bd. of Educ., Union Free Sch. Dist. No. 6,
272
N.E.2d 488 (1971)). Indeed, § 3813’s notice of claim provisions are jurisdictional in nature, and
a plaintiff’s failure to timely comply precludes an action.
Avgerinos v. Palmyra-Macedon Cent.
Sch. Dist.
,
While subsection one of § 3813 requires a written verified claim for all actions,
subsection two requires a notice of claim before bringing a tort action.
Peritz v. Nassau Cty. Bd.
of Coop. Educ. Servs.
, No. 16CV5478,
Although Plaintiff argues that a discrimination claim is not a tort action, and, therefore, a
notice of claim need not be filed as a condition precedent to commencing a lawsuit, the Second
Circuit is currently undecided as to whether NYSHRL claims against a school district require a
notice of claim.
See Berrie v. Bd. of Educ. of Port Chester-Rye Union Free Sch. Dist.
, No. 14-
CV-6416 (CS),
In
Margerum v. City of Buffalo
, the New York Court of Appeals considered whether the
GML requires a notice of claim for actions based on NYSHRL claims.
Plaintiff relies heavily on
Caputo v. Copiague Union Free Sch. Distr
., a case from this
District which reasoned that
Margerum
made clear that NYSHRL claims “are not tort action[s]
under [N.Y. Educ. Law] § 3813 and therefore a notice of claim for a NYSHRL claim against a
school district or its personnel is not required.” No. 15-CV-5292,
In any event, the Court need not decide how to apply
Margerum
, since Plaintiff
substantially complied with § 3813 – by sending a detailed letter to the District providing the
underlying factual basis for,
inter alia
, her state law discrimination claims. Indeed, unlike
§ 3813(2), § 3813(1) “does not require a formal notice of claim or refer to [GML] § 50(e), but
only states that the claims must have been ‘presented to the . . . district or school within three
months after the accrual of such claim’ prior to filing a complaint.”
Berrie,
Here, Plaintiff alleges that she sent the District a letter containing formal complaints of discrimination on September 16, 2016. See Pl.’s Opp’n. at 17. The Court points out that the September 16, 2016 letter is omitted altogether from the Amended Complaint. Nor did Plaintiff attach the letter to her opposition to the instant motion. Nevertheless, Plaintiff filed a charge with the EEOC on November 17, 2016, concerning, inter alia , Plaintiff’s discrimination claims. And, in any event, Defendants do not contest notice of Plaintiff’s claims. Therefore, setting aside for the moment whether Plaintiff’s claims are subject to the continuing violation exception, Plaintiff’s NYSHRL claims would be limited to the period of August 17, 2016 to November 17, 2016 (90 days before Plaintiff filed an official administrative charge).
4.
Timeliness of the NYSHRL Claims
In general, claims brought pursuant to the NYSHRL are governed by a three-year statute
of limitations.
Cincotta v. Hempstead Union Free Sch. Dist.
, No. 15-CV-4821, 2016 WL
4536873, at *16 (E.D.N.Y. Aug. 30, 2016);
Bowen-Hooks
,
Notwithstanding the general three-year statute of limitations applicable to claims brought
pursuant to the NYSHRL, “New York law provides for a shorter [one-year] statute of limitations
for claims against schools, school districts, and boards of education.”
Sotomayor
, 862 F. Supp.
2d at 249;
Edwards v. Jericho Union Free Sch. Dist.
,
Applying these principles to the instant case, Plaintiff’s NYSHRL claims against the
District, the Board, Superintendent Bannon, Assistant Superintendent Andrews, and Foreign
Language Coordinator Budion are subject to the one-year statute of limitations, since these
individuals are considered “officers”
[9]
within the meaning of N.Y. Educ. Law § 3813. Had
Plaintiff actually asserted claims against Agosta, who was the District’s high school principal,
they would be governed by the longer three-year limitations period.
See Edwards
, 904 F. Supp.
2d at 303 (“It is well-settled that school principals ... are not ‘officers’ of the District or Board
within the meaning of the statute.”);
Benedith
,
Further, although as a general matter, the statute of limitations for claims brought
pursuant to the NYSHRL are tolled during the pendency of the filing of an administrative charge
of discrimination,
see DeNigris
,
one year . . . Furthermore, a plaintiff’s filing of an EEOC complaint does not toll the running of
the statute of limitations.”);
Smith v. Tuckahoe Union Free Sch. Dist.
, No. 03 CIV. 7951, 2009
WL 3170302, at *11 (S.D.N.Y. Sept. 30, 2009) (“Even if Smith had not waived the argument
that his EEOC charge tolled the statute of limitations set forth in Education Law § 3813(2–b),
this Court would not be inclined in light of
Amorosi
and the clear intent of the New York
legislature to limit lawsuits against school districts—to read such a provision into the statute.”);
Field v. Tonawanda City Sch. Dist.
,
D. § 1983 Claims
The Court next considers Plaintiff’s §1983 causes of action set forth in Counts II, III, and IV. Am. Compl. ¶¶ 167-217. Although the Amended Complaint mistakenly characterizes these claims as arising under 29 U.S.C. § 1983, the Court construes these claims as arising under 42 U.S.C. § 1983, the operative federal statute for any civil action for deprivation of rights. Further, although Plaintiff fails to expressly identify each cause of action, the Court construes the Amended Complaint to set forth claims for violation of equal protection under the Fourteenth Amendment to the U.S. Constitution, Am. Compl. ¶¶ 167-94, 214-17, and violation of due process under the Fifth and Fourteenth Amendments to the U.S. Constitution, see id. ¶¶ 195-213. The Court also construes Count VII as setting forth a Monell claim against the District and Board. Id. ¶¶ 238-42. The Court considers each claim in turn below.
1. Disability Discrimination and the Equal Protection Clause Defendants argue that insofar as Plaintiff is alleging a violation of her Fourteenth Amendment equal protection right, her claim must fail as a matter of law because (1) a claim of disability discrimination in violation of the Equal Protection Clause premised upon substantive rights provided by the ADA is not actionable, and (2) the Equal Protection Clause does not apply to claims brought by public employees under a “class of one theory.” See Defs.’ Mem. at 13. Plaintiff argues that she is permitted to bring claims under the Equal Protection Clause to the extent she has been treated differently from similarly situated individuals. She further contends she had sufficiently alleged that Defendants prevented her from returning to work in derogation of her constitutional rights. Pl.’s Opp’n at 23-24.
As an initial matter, it is well-settled that a plaintiff asserting discrimination claims under
a federal statute may bring a concurrent §1983 action, such as an alleged denial of equal
protection, “so long as the § 1983 claim is based on a distinct violation of a constitutional right.”
Gierlinger v. N.Y. State Police,
Therefore, to the extent Plaintiff’s claim of disability discrimination is premised upon the
substantive rights provided by the ADA, the claim is not actionable under § 1983.
See, e.g.,
Lener
,
A plaintiff may, however, bring a § 1983 claim premised upon substantive rights distinct
from an employment discrimination statute like the ADA.
Lener
,
Although it is not clear here whether Plaintiff styles her § 1983 claims as a “selective enforcement” equal protection claim, or a “class of one claim,” the Court considers each in turn below.
a.
Class of One Theory
“In a ‘class of one’ case, [a] plaintiff uses ‘the existence of persons in similar
circumstances who received more favorable treatment . . . to provide an inference that [she] was
intentionally singled out for reasons that so lack any reasonable nexus with a legitimate
governmental policy that an improper purpose — whether personal or otherwise — is all but
certain.’”
Lener
,
However, as relevant here, the Equal Protection Clause does not apply to public
employees, like Plaintiff, asserting a “class of one theory.”
Engquist v. Or. Dep't of Agric.,
553
U.S. 591, 603 (2008) (deciding that “the class-of-one theory of equal protection has no
application in the public employment context”);
Appel v. Spiridon,
The Court notes that even if Plaintiff could bring a “class of one” claim, Plaintiff has
failed to plead the extremely high degree of similarity between herself and her comparators
necessary to support an inference that Plaintiff was impermissibly singled out. For pleading
purposes, the “extremely high degree of similarity,” is the functional equivalent of alleging that a
plaintiff and comparator are “
prima facie
identical.”
Neilson v. D'Angelis
,
b.
Selective Enforcement Theory
“To prevail on a selective enforcement claim, a plaintiff must show (1) that she was
treated differently from others similarly situated, and (2) that such differential treatment was
based on impermissible considerations such as race, religion, intent to inhibit or punish the
exercise of constitutional rights, or malicious or bad faith intent to injure a person.”
Lener
, 55 F.
Supp. 3d at 283 (internal quotations and citations omitted). Selective enforcement is a “murky
corner of equal protection law in which there are surprisingly few cases.”
Diesel v. Town of
Lewisboro,
Courts in this Circuit are divided on whether selective enforcement claims are available
in the public employment context post-
Engquist. See Gentile,
Therefore, for the foregoing reasons, the Court respectfully recommends that Defendants’ motion to dismiss Plaintiff’s equal protection claim be GRANTED and the claim be dismissed. 2. Procedural Due Process Claim
Defendants maintain that it is unclear from the Amended Complaint what procedures, if any, Plaintiff alleges she was denied, or how Plaintiff suffered any deprivation of life, liberty or property. Defs.’ Mem. at 15. Defendants argue that any claim for procedural due process must fail since Plaintiff was not terminated, nor were any personnel decisions made in connection with her employment. Id. at 16. Plaintiff’s refusal to return to work does not give rise to any constitutional violation according to the Defendants. Id . Plaintiff argues that her right to due process was violated to the extent she was denied an interactive process. See Pl.’s Opp’n at 29-30.
Reading the Amended Complaint in a light most favorable to Plaintiff, the Court construes two possible bases for Plaintiff’s procedural due process claim: (1) constructive discharge and (2) denial of the interactive process. Am. Compl. ¶¶ 195-213. The Court addresses each in turn.
a. Constructive Discharge
As stated by the Supreme Court,
[u]nder the constructive discharge doctrine, an employee's reasonable decision to resign because of unendurable working conditions is assimilated to a formal discharge for remedial purposes. The inquiry is objective: Did working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign? Pennsylvania State Police v. Suders ,542 U.S. 129 , 130 (2004)
The constructive discharge standard is “demanding,”
Miller v. Praxair, Inc.,
408 Fed. App’x.
408, 410 (2d Cir. 2010) and requires a more robust showing than that required by a hostile
[work] environment claim,”
Mandel v. Champion Int'l Corp.,
The Court has already found that Plaintiff has failed to state a claim for hostile work
environment. Logically then, Plaintiff has necessarily failed to state the more demanding claim
for constructive discharge. The factual allegations do not show that Plaintiff’s working
conditions became so intolerable that a reasonable person in her position would have felt
compelled to resign, especially since Plaintiff has not alleged any threatening or sufficiently
severe acts. Thus, Plaintiff has failed to allege that her due process right as guaranteed by the
Fourteenth Amendment was violated.
Rasulo v. Hartnett
,
b. Interactive Process The issue is whether Plaintiff states a procedural due process claim against Defendants for refusing to engage in the interactive process. Am. Compl. ¶¶ 193, 203-05. Plaintiff argues that Defendants were required to engage in the interactive process and, by failing to do so, violated her right to procedural [and substantive] due process. Pl.’s Opp’n at 29-30.
The Fourteenth Amendment to the United States Constitution states that “[n]o State shall
. . . deprive any person of life, liberty, or property, without due process of law.” U.S. Const.
amend. XIV. “The two threshold questions in any § 1983 claim for denial of procedural due
process are whether the plaintiff possessed a liberty or property interest protected by the United
States Constitution or federal statutes and, if so, what process was due before the plaintiff could
be deprived of that interest
.
”
Green v. Bauvi
,
At least one court in this District has previously considered whether a plaintiff adequately
stated a § 1983 procedural due process claim based on an employer’s failure to engage in the
interactive process.
Laface
,
The factual allegations in this action similarly fail to offer any insight into the interactive process Plaintiff alleges she was denied -- statutory or otherwise. Although the Amended Complaint is filled with allegations concerning Defendants’ failure to engage in the “interactive process,” Plaintiff does not allege what the process was, what it required, or its statutory underpinnings. generally Am. Compl. On that basis, Plaintiff has failed to identify any “legal foundation for any theoretical entitlement to [her] purported property right.” Laface, 349 F. Supp. 3d at 157.
In any event, although Plaintiff alleges that Defendants failed to engage in the interactive process, she states, among other things, that: (1) the District provided her with her requested reasonable accommodation every year since she first requested it, up to and including the 2015- 2016 school year, Am. Compl. ¶ 68; (2) the District requested medical documentation in support of her disabilities on an annual basis, id. ¶ 28; and (3) in or around April of 2017, while Plaintiff was recovering from her fall, District counsel reached out to Plaintiff’s attorney concerning Plaintiff’s medical clearance, id. ¶ 89.
Notably, even if Plaintiff had alleged a constitutionally protected property interest, she
cannot demonstrate deprivation of any procedural protections since she was able to bring an
Article 78 proceeding -- an adequate post-deprivation remedy for procedural due process -- prior
to bringing this action in federal Court.
Laface
,
Here, the alleged refusal to engage in an “interactive process” is a random, unauthorized
act by the Defendants.
Laface
,
For these reasons, Plaintiff’s claim for violation of her right to procedural due process fails. The Court respectfully recommends that Defendants’ motion to dismiss Plaintiff’s § 1983 procedural due process claim be GRANTED.
3.
Substantive Due Process Claim
Plaintiff's claim for a violation of her substantive due process rights also fails. “To state a
substantive due process claim, a plaintiff must allege that: (1) the complained-of state action
compromised a constitutionally-protected liberty or property right, and (2) the state action that
deprived him of that interest was oppressive or arbitrary.”
Rother v. NYS Dep't of Corr. & Cmty.
Supervision
,
Even assuming all of the facts in the Amended Complaint to be true, the conduct alleged
was not so shocking or oppressive as to give rise to a claim for substantive due process.
Yap v.
Oceanside Union Free Sch. Dist.
,
In this case, Plaintiff’s contentions, namely, that (1) she was provided a single room in which to teach and prepare from 1998-2016 and then asked to use two adjacent rooms, (2) she was observed four times instead of two times and had one unsatisfactory review expunged from her record, and (3) she was assigned a disproportionate number of special needs students – plainly do not satisfy the high bar required of a substantive due process claim. Considering the facts in a light most favorable to Plaintiff, the allegations concerning Defendants’ conduct do not shock the conscience.
Moreover, the Court notes that Plaintiff has failed to offer any meaningful argument
whatsoever in response to Defendant’s motion to dismiss her substantive due process claim.
“District courts in this circuit have found that [a] plaintiff's failure to respond to contentions
raised in a motion to dismiss claims constitute an abandonment of those claims.”
Youmans v.
Schiro
, No. 12 Civ. 3690,
Here, in opposition to Defendants’ motion, Plaintiff asserts — in conclusory fashion — that “the interactive process constitutes both a procedural and substantive due process right that defendants willfully violated.” Pl.’s Opp’n at 30. Plaintiff makes no effort whatsoever to respond to Defendants’ argument that Plaintiff has altogether failed to allege any acts so extreme, egregious, or offensive to human dignity, as to shock the contemporary conscience. Indeed, Plaintiff’s opposition is completely preoccupied with Defendants’ refusal to engage in the interactive process as a procedural violation. id. Based on the applicable case law, the Court finds that Plaintiff’s substantive due process claim has been abandoned.
For the foregoing reasons, the Court respectfully recommends that Defendant’s motion to dismiss Plaintiff’s substantive due process claims be GRANTED and the claim be dismissed.
4. Monell Liability With regard to any Monell claim, since the Court has found that Plaintiff failed to allege any constitutional violations, the Court need not engage in an analysis concerning whether alleged constitutional violations arose out of a governmental custom, policy or practice. Therefore, the Court respectfully recommends that Defendants’ motion to dismiss Plaintiff’s Monell claim be GRANTED.
F. Violation of the New York State Constitution
Plaintiff asserts that Defendants violated her rights under Article I, Sections 8 and 11 of
the New York Constitution by violating her right to free speech and depriving her of equal
protection of the laws of the State. Am. Compl. ¶¶ 259-66. “No explicit constitutional or
statutory authority sanctions a private right of action for violations of the New York State
Constitution.”
Wahad v. F.B.I.
,
In line with these cases, the Court finds that Plaintiff’s attempt to assert claims under Article I, Sections 8 and 11 of the New York Constitution is not viable because Plaintiff lacks a private right of action. The Court points out that Plaintiff also cites Article I Section 14 of the New York State Constitution which concerns the force and effect of the laws of “the colony of New York” and “the convention of the State of New York,” both of which appear to be altogether inapplicable to the instant action. Am. Compl. ¶265.
Accordingly, the Court respectfully recommends that Defendants’ motions to dismiss the tenth cause of action in the Amended Complaint be GRANTED and that this cause of action be dismissed.
IV. C ONCLUSION
For the foregoing reasons, the Court respectfully recommends to Judge Feuerstein that Defendants’ motion to dismiss be GRANTED, in PART, and DENIED, in PART. Specifically, the Court recommends as follows:
(1) With respect to Plaintiff’s claims for disability discrimination under the ADA, as set forth in Count I of the Amended Complaint, the Court respectfully recommends that (i) Defendant’s motion to dismiss Plaintiff’s hostile work environment claim be GRANTED and the claim be dismissed; (ii) Defendants’ motions to dismiss Plaintiff’s discrimination, retaliation, and failure to accommodate claims be DENIED, except that any such claims concerning acts which occurred before January 22, 2016 are time-barred and should be dismissed .
(2) With respect to Plaintiff’s NYSHRL claims as against the District, as set forth in Count V of the Amended Complaint, the Court respectfully recommends that: (i) Defendants’ motion to dismiss any hostile work environment claim arising under the NYSHRL be GRANTED and that any such claim be dismissed; (ii) Defendants’ motion to dismiss any disability discrimination, retaliation, and failure to accommodate under the NYSHRL be DENIED, except that any such claims concerning acts which occurred before October 1, 2014 are time-barred and should be dismissed.
(3) With respect to Plaintiff’s aiding and abetting NYSHRL claims, as set forth in Count VI of the Amended Complaint, the Court respectfully recommends that (i) Defendants’ motion to dismiss claims as against defendants Bannon, Andrews, and Budion, be DENIED, except that any claims concerning acts which occurred before October 1, 2014 are time-barred and should be dismissed; and (ii) Defendants’ motion to dismiss claims as against Agosta be GRANTED and any such claims be dismissed.
(4) With respect to Plaintiff’s § 1983 and Monell claims, as set forth in Counts II, III, IV, and VII of the Amended Complaint, the Court respectfully recommends that: (i) Defendants’ motions to dismiss Plaintiff’s equal protection and procedural due process claims be GRANTED and the claims be dismissed; (ii) Defendants’ motion to dismiss Plaintiff’s substantive due process claims be GRANTED and the claims be dismissed; and (iii) Defendants’ motion to dismiss Plaintiff’s Monell claim be GRANTED and the claim be dismissed.
(5) With respect to Plaintiff’s claims brought under the New York State Constitution as set forth in Count X of the Amended Complaint, the Court respectfully recommend that Defendants’ motion to dismiss be GRANTED and the claims be dismissed.
V. O BJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1)(c) and Rule 72 of the Federal Rules of Civil Procedure,
the parties shall have fourteen (14) days from service of this Report and Recommendation to file
written objections. See also Fed. R. Civ. P. 6(a), (e). Such objections by an attorney of record
shall be filed with the Clerk of the Court via ECF. A courtesy copy of any objections filed is to
be sent to the Chambers of the Honorable Sandra J. Feuerstein. Any requests for an extension of
time for filing objections must be directed to Judge Feuerstein prior to the expiration of the
fourteen (14) day period for filing objections. Failure to file objections will result in a waiver of
those objections for purposes of appeal.
Thomas v. Arn
,
SO ORDERED: Dated: Central Islip, New York
March 9, 2019
/s/ A. Kathleen Tomlinson A. KATHLEEN TOMLINSON United States Magistrate
Notes
[1] The Court notes that Plaintiff names Joseph Agosta (“Principal Agosta” or “Agosta”), principal of Walter G. O’Connell Copiague High School, in the “Parties” section of the Complaint, but does not name Agosta in any cause of action set forth thereafter. See Compl. ¶¶ 6, 102-200. Nor is Agosta named in the caption.
[2] Specifically, Plaintiff alleges that: (1) “almost every year since [she] first requested reasonable accommodation . . . the District has refused to provide it,” in the first instance, including up to and during the 2016-2017 school year; (2) beginning in the 2016-2017 school year, Defendants denied her requests for reasonable accommodation and refused to engage in any interactive process and (3) leading up to and including the 2014-2015, 2016-2017, and 2017- 2018 school years, Defendants assigned Plaintiff a disproportionately high number of learning disabled, delinquent, and/or remedial students. Am. Compl. ¶¶ 23, 36-40, 57-62, 154.
[4] Plaintiff also asserts a separate NYSHRL cause of action for “unlawful retaliation under state law as against all defendants.” Am. Compl. ¶¶234-47. In the Court’s view, Count VIII is duplicative of Plaintiff’s other NYSHRL claims. In any event, the Court considers Plaintiff’s NYSHRL claims together here.
[5] Although Plaintiff lists Agosta under “Parties,” Am. Compl. ¶ 6, Agosta is not named in the caption of the case, nor is he named in Plaintiff’s sixth cause of action for aiding and abetting, id. ¶¶ 229-37. The Court will consider only the individual defendants named in Count VI, namely, Bannon, Andrews, and Budion. In any event, the factual allegations mention Agosta twice in passing. Id. ¶¶ 52, 60.
[6] note 9 below for a discussion on the individual defendants’ roles as officers of the District.
[7] Section 3813(1) explicitly concerns lawsuits against “any school district, board of education, board of cooperative educational services . . . or any officer of [same].” N.Y. Educ. Law § 3813.
[8] “Article 85 schools are statutorily designated ‘special schools,’ including schools for
the instruction of the deaf and blind, as are schools governed by Chapter 1060 under the 1974
laws.”
Richards v. Calvet
, No. 99 Civ. 12172,
[9] The term “school officer” is defined in the New York Education Law as “a clerk, collector, or treasurer of any school district; a trustee; a member of a board of education or other body in control of the schools by whatever name known in a union free school district, central school district, central high school district, or in a city school district; a superintendent of
[10] There is some disagreement as to the meaning of “similarly situated” in the context
of selective enforcement claims.
See Gentile,
[11] Although Plaintiff set forth her procedural due process claim under the Fifth
Amendment, the Court construes the claim under the Fourteenth Amendment since the Fifth
Amendment protects against due process violations committed by “the federal government and
federal employees, and does not regulate the activities of state officials or state actors.”
Viteritti
v. Inc. Vill. of Bayville
,
[12] While Judge Garaufis in
Alwan
recognized the consistency with which courts in this
Circuit have held that no private right of action exists under the New York Constitution, he
declined to apply the logic underpinning these decisions where the state constitutional claims
were premised on a theory of
respondeat superior
because “[a] plaintiff seeking to recover on
the basis of respondeat superior simply does not come within the terms of [§] 1983.”
Alwan
, 311
F. Supp. 3d at 587 (quoting
Brown
,