Case Information
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JOSEPHINE KIRKLAND-HUDSON,
Plaintiff,
No. 21-CV-695 (KMK) v. OPINION & ORDER
MOUNT VERNON CITY SCHOOL DISTRICT , et al .,
Defendants. Appearances:
Bryan Glass, Esq.
Glass Harlow & Hogrogian LLP
New York, NY
Counsel for Plaintiff
Gerald S. Smith, Jr., Esq.
Deanna L. Collins, Esq.
Silverman and Associates
White Plains, NY
Counsel for Defendants
KENNETH M. KARAS, United States District Judge:
Josephine Kirkland-Hudson (“Plaintiff”) brings this Action against the Mount Vernon City School District/Board of Education (“District”), Felicia Gaon (“Gaon”), Susan Burnett (“Burnett”), Rachel DePaul (“DePaul”), Karalyne Sperling (“Sperling”), Marcie E. Tiggs (“Tiggs”), and Kenneth R. Hamilton (“Hamilton”) (collectively, “Defendants”), alleging that Defendants unlawfully maintained a hostile work environment, discriminated, and retaliated against her on the basis of her race in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 1981, and the New York State Human Rights Law (“NYSHRL”). ( See generally Sec. Am. Compl. (Dkt. No. 59).) Plaintiff additionally alleges Defendants unlawfully maintained a hostile work environment, discriminated, and retaliated against her on the basis of her disability in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12132, et seq., and the NYSHRL and failed to reasonably accommodate her in violation of the ADA. ( See id. ) Finally, Plaintiff brings claims of interference and retaliation against the District, Tiggs, and Hamilton in violation of the Family and Medical Leave Act (“FMLA”), 29 U.S.C. §§ 2601, et seq. ( See id. ) Before the Court is Defendants’ Motion To Dismiss (the “Motion”) Plaintiff’s Second Amended Complaint (“SAC”). ( See Not. of Mot. (Dkt. No. 69).) For the following reasons, Defendants’ Motion is granted in part and denied in part.
I. Background
A. Factual Background
1. Parties The District is a school district within the State of New York at which Plaintiff was employed. (SAC ¶ 10–11.)
Plaintiff is a Black social worker employed with the District since 2005. ( Id . ¶¶ 18–19.) Since the 2017-2018 school year she has been assigned to both the Lincoln School (“Lincoln”) and the Rebecca Turner Elementary School (“Rebecca Turner”). ( Id . ¶ 9.)
Gaon was the former Director of Student Services until she resigned in June 2020. ( Id . ¶ 12.) She was originally hired as the Director of Special Education in 2013. ( Id .)
DePaul was the Interim Director of Student Services from September 2021 until she resigned on December 31, 2021. ( Id . ¶ 13.) She was originally hired as the Assistant Director of Special Education. ( Id .)
Burnett is Caucasian, was the former Special Education Supervisor, and was Plaintiff’s direct supervisor at Rebecca Turner. ( Id . ¶¶ 14, 25.) She was employed with the District from September 2018 until she resigned on July 21, 2020. ( Id .)
Sperling is Caucasian, was the former Special Education Supervisor, and was Plaintiff’s direct supervisor at Lincoln. ( Id . ¶¶ 15, 25.) She was employed with the District from October 2019 until she resigned on October 15, 2021. ( Id .)
Hamilton has been employed with the District as Superintendent of Schools since 2014, resigning from the District effective June 30, 2022. ( Id . ¶ 16.)
Tiggs was employed with the District as Assistant Superintendent of Human Resources.
( Id . ¶ 17.)
2. Incidents Giving Rise to this Action
a. 2015–2016 School Year Beginning in the 2015-16 school year, Plaintiff and her fellow social workers began to notice a shift in the treatment of the District’s Black social workers, through unbalanced schedule assignments and targeted disciplinary actions. ( Id . ¶ 22.) In March 2016, Plaintiff drafted a letter on behalf of Mount Vernon City School District’s social workers addressed to Gaon and Hamilton demanding equitable treatment, fair distribution of caseloads, and documenting the disproportionate number of disciplinary actions targeting Black social workers. ( Id . ¶ 23.) Plaintiff alleges the letter contributed to Gaon’s probationary period being extended an additional year. ( Id .) Though the letter was not signed, Plaintiff alleges Gaon discovered that Plaintiff drafted the letter. ( Id .) Since drafting the 2016 letter, Plaintiff has been assigned an “unbalanced counseling schedule” despite her objections. ( Id .)
b. 2018–2019 School Year In the 2018–2019 school year, Plaintiff was assigned to service students with mandatory counseling plans at two schools—Rebecca Turner for two days and Lincoln for three days. ( Id . ¶ 25.) Plaintiff needed to service 26 students at Rebecca Turner and 13 students at Lincoln. ( Id . ¶ 26.) Plaintiff alleges she knew that she could not provide all the sessions needed at Rebecca Turner if she was only spending two days per week there. ( Id .)
During the 2018–2019 school year, a union meeting was held where Plaintiff discovered that only Black social workers were assigned unbalanced schedules which had a negative impact on the educational needs of students with disabilities. ( Id . ¶ 27.) At the end of the meeting, DePaul told Plaintiff that Gaon purposefully assigned her an unbalanced schedule because of Plaintiff’s 2016 letter which delayed Gaon’s tenure by a year. ( Id .)
During a faculty meeting at Rebecca Turner in 2018, Burnett commented that a Black Special Education child with autism would wind up at Rikers Island. ( Id . ¶ 28.)
c. 2019–2020 School Year For the 2019–20 school year, the number of Plaintiff’s students on her caseload increased to 57 students between Lincoln (2.5 days and 13 students) and Rebecca Turner (44 students and 2.5 days). ( Id . ¶ 30.)
Plaintiff experienced increased hostility during her interactions with Gaon and administrative staff, the majority of whom were non-Black. ( Id . ¶ 31.) For example, Plaintiff was scrutinized for minor infractions that were regularly excused when committed by her Caucasian colleagues, such as being reprimanded for being a few minutes late to a meeting, while similarly situated Caucasian colleagues who showed up later than Plaintiff were not reprimanded. ( Id .) Defendants would also cancel scheduled union meetings interfering with Plaintiff’s union leadership duties to advocate on behalf of the members she represented. ( Id .) Defendants ultimately decided to not have these meetings at all. ( Id .) Plaintiff has been the “subject of two disciplinary actions involving fabricated performance issues and enforcing unrealistic work expectations only against Plaintiff’s work.” ( Id .)
Plaintiff filed a Level 1 grievance against Gaon and Burnett on September 23, 2019, regarding violations of the Mount Vernon Federation of Teachers Collective Bargaining Agreement regarding her schedule, working conditions, the student services committee, and the labor-management relations committee which was resolved by way of agreement reached on October 10, 2019. ( Id . ¶ 32.)
On October 8, 2019, Plaintiff filed a formal internal complaint of race discrimination and harassment with the District’s Human Resources Department against Gaon which was unanswered by the District. ( Id . ¶ 33.) In retaliation for filing the complaint, Gaon “interfered with attempts to stop Plaintiff from going to [a] union meeting” she had permission to attend, embarrassing her in front of nearly 50 clinicians and supervisors. ( Id . ¶ 34.)
Plaintiff’s September 23, 2019, grievance was denied shortly after she filed her complaint with the Human Resources Department. ( Id . ¶ 35.) On October 17, 2019 Gaon sent Plaintiff an email rescinding the grievance agreement reached on October 10, 2019 and rescinding a previous scheduling agreement. ( Id .) On October 20, 2019, Plaintiff sent Gaon an email asking her what “terms were not met,” to which she never responded. ( Id . ¶ 36.) Plaintiff filed a Level 2 grievance on October 25, 2019, and a meeting was held on November 1, 2019, with the then Assistant Superintendent for Human Resources, Denise Gagne-Kurpiewski, and Jeanne Casino, the union grievance chairperson. ( Id .) On November 7, 2019, Plaintiff’s second grievance was denied without explanation. ( Id .)
On January 29, 2020, Plaintiff filed a follow-up letter regarding her race discrimination internal complaint with the Human Resources Department, which was not answered. ( Id . ¶ 38.)
On May 6, 2020, when the District was working remotely due to COVID–19, Gaon and Burnett requested to have a remote meeting with Plaintiff to discuss her professional responsibilities and suggested she bring a union representative. ( Id . ¶ 39.) The meeting was held on May 12, 2020; that same day Plaintiff received “a threatening disciplinary letter of counsel for ‘not completing a schedule’” from Bennett that was copied to Gaon and DePaul. ( Id .) The next day during a Zoom staff meeting, Sperling informed attendees that they would need to submit their remote schedules because of “one or two bad apples.” ( Id . ¶ 40.)
Plaintiff applied to work in the extended school year program for the summer of 2020 on June 8, 2020 which she had worked at the previous two summers. ( Id . ¶ 41.) On July 7, 2020 Plaintiff found out she was not selected for summer work and accordingly could not earn additional income and seniority with respect to the summer program. ( Id .) Plaintiff inquired as to why she was not hired on July 12, 2020, to which DePaul responded that there was less work available. ( Id .) Plaintiff later learned that “work was in fact available.” ( Id .)
d. 2020–2021 School Year On September 16, 2020, Gaon “retaliated” against Plaintiff by issuing her a letter of counsel for Plaintiff having logged off a Zoom meeting that was being recorded without Plaintiff’s consent on September 10, 2020. ( Id . ¶ 42.) On February 4, 2021, Gaon falsely accused Plaintiff of failing to submit clinical verification sheets. ( Id . ¶ 44.)
On February 11, 2021, after experiencing panic attacks and symptoms of depression due to the ongoing treatment in her work environment, Plaintiff applied for FMLA leave for 12 weeks beginning on March 1, 2021, to address her mental and physical health needs. ( Id . ¶ 45.) Plaintiff’s FMLA application stated that she was “currently diagnosed with Post Traumatic Stress Disorder, Major Depressive Disorder, and Generalized Anxiety Disorder.” ( Id .) On February 24, 2021, Hamilton and Tiggs sent Plaintiff a letter directing her to an Education Law § 913 medical examination on March 11, 2021, and Plaintiff was informed that she could use sick time if she was unable to report to work. ( Id .)
Plaintiff was on sick leave from March 8, 2021 to May 31, 2021. ( Id . ¶ 46.) On March 25, 2021, the District denied Plaintiff’s FMLA leave, however on April 4, 2021, Plaintiff was informed she was approved for FMLA leave. ( Id . ¶¶ 47–48.) Plaintiff asked the District to reinstate her FMLA leave balance since she already had been home for weeks using her personal sick days, which it refused to do. ( Id . ¶ 48.)
While Plaintiff was on sick leave, she “was subjected to continued harassment and retaliation by the [] Defendants.” ( Id . ¶ 49.) Plaintiff instructed Defendants to use the postal service to contact her should they need to contact her during her sick leave, however Defendants “sent employees to Plaintiff’s home repeatedly to deliver correspondence and spy on her.” ( Id .) Defendants ignored Plaintiff’s repeated requests to keep off her property and continued to send employees to her home. ( Id .) On May 14, 2021, Plaintiff filed a police report alleging “District’s Defendants were constantly bothering her by coming onto her property, knocking on her door, leaving letters in her mailbox, driving up and down the street in front of her home, [and] pacing up and down her driveway.” ( Id . ¶ 50.) A copy of the report was emailed to Hamilton and Tiggs. ( Id . ¶ 51.)
On June 1, 2021, the day Plaintiff returned to her social worker position from sick leave, she received an email from DePaul directing her to report in-person to Lincoln. ( Id . ¶ 52.) Plaintiff informed DePaul that she had been approved for ADA accommodations to work in- person from Rebecca Turner and provide remote learning to Lincoln students, however, DePaul did not respond to Plaintiff. ( Id .) That day, DePaul also notified Plaintiff about her work assignment for the upcoming school year which was an “unbalanced schedule caseload.” ( Id .) After Plaintiff’s repeated attempts to resolve the issue with DePaul, Plaintiff filed a Level 1 union grievance on June 18, 2021. ( Id .) Plaintiff ultimately received an email from DePaul with an agreement reached regarding her assignment in September 2021. ( Id .)
e. 2021–2022 School Year On September 10, 2021, DePaul held a Clinician Zoom Meeting in which Plaintiff was forced to be video recorded despite her objection. ( Id . ¶ 53.) During this meeting, DePaul informed the clinicians that they would be required to make up services from the prior year, which Plaintiff alleges violated their collective bargaining agreement. ( Id .) On September 27, 2021, Plaintiff filed a grievance against DePaul alleging a hostile work environment and inequitable treatment, and objecting to being video recorded. ( Id . ¶ 54.) At the Level 1 grievance meeting, DePaul verbally provided Plaintiff with options to avoid being video recorded. ( Id .) DePaul denied the grievance in writing on October 21, 2021. ( Id .) Plaintiff filed a Level 2 grievance on November 1, 2021 to Hamilton and Tiggs which was denied by Tiggs on November 9, 2021. ( Id .)
On October 27, 2021, Plaintiff applied for an internal posting for social workers to provide counseling outside of school hours. ( Id . ¶ 55.) DePaul ignored Plaintiff’s emails regarding the posting. ( Id .) Plaintiff filed a Level 1 grievance against DePaul regarding the rate of pay and description of the posting which was denied on November 9, 2021. ( Id .) Plaintiff filed a Level 2 grievance to Hamilton and Tiggs on November 18, 2021 which was denied by Tiggs on December 2, 2021. ( Id .)
On approximately November 4, 2021, Plaintiff learned that DePaul held a staff Zoom meeting for Rebecca Turner staff on October 1, 2021 to discuss a due process complaint. ( Id . ¶ 56.) Plaintiff believes she was intentionally excluded from this meeting since she was present at work on this day and was the only person not at this meeting. ( Id .) Plaintiff had reached out to DePaul in previous emails to inform her she was not included on important department emails, but the situation was not resolved. ( Id .)
On December 7, 2021, the Board of Education held a meeting and publicly shared an agenda item regarding a memorandum which stated that Plaintiff applied for a per session posting and then falsely accused Plaintiff along with two other colleagues of declining to provide services to students. ( Id . ¶ 57.) The agenda item was submitted by Hamilton; Plaintiff believes Hamilton and DePaul authored it in retaliation against her. ( Id .) The next day, Plaintiff emailed DePaul pertaining to the December 7, 2021 memorandum, however DePaul did not respond. ( Id .)
On December 20, 2021, Plaintiff filed an internal claim of harassment, retaliation, and intimidation against Hamilton and DePaul. ( Id . ¶ 58.) That same day at a Board of Education meeting, one of the Board trustees read a joint public statement on behalf of Hamilton and the board in response to “a claim” by an individual. ( Id . ¶ 59.)
On January 18, 2022, Plaintiff submitted a request for ADA accommodations regarding her workspace at Lincoln and provided several accommodation options. ( Id . ¶ 60.) That request was denied at the direction of Tiggs. ( Id . ¶ 61.) On January 31, 2022, Plaintiff sent an email to Tiggs and two others stating her physician had required her to work from a single location due to “health conditions” and that she was also experiencing a high level of anxiety and not sleeping. ( Id . ¶ 62.)
That same day, while working at Lincoln, Plaintiff had to leave early “due to illness, shortness of breath, anxiety, and panic attacks.” ( Id . ¶ 63.) She went to urgent care and was diagnosed with bronchitis. ( Id .) Plaintiff has since been diagnosed with asthma. ( Id .)
On February 1, 2022, Hamilton proposed a board agenda item that included the memorandum with the allegedly false information about Plaintiff. ( Id . ¶ 64.) Plaintiff believes “she is being blacklisted” from future employment opportunities. ( Id .) On February 4, 2022, Plaintiff filed a complaint with the New York State Department of Labor Public Employee Safety and Health Bureau alleging the District did not have appropriate face coverings or PPE. ( Id . ¶ 65.) The same day, Plaintiff also requested another FMLA leave, which was denied “at the direction of” Tiggs. ( Id . ¶¶ 66, 69.)
f. EEOC Filing Plaintiff’s EEOC charge is dated June 2, 2020. (Compl. 12–15.) Plaintiff filed the instant action on January 25, 2021, after receiving a right to sue letter from the EEOC on approximately October 28, 2020. (SAC ¶ 43.) Plaintiff alleged that “[s]ince 2016,” white social workers received “accommodating” “assignments/workloads” while similarly situated social workers of color were given higher workloads and were split between schools. (Compl. 12.) Plaintiff alleged that, in retaliation for filing internal complaints about her assignment and caseload and the harassment she experienced, she was prevented from attending a union meeting on October 16, 2019 and that an agreement regarding her schedule and workload was “reversed and denied.” ( Id . at 13.) Plaintiff also alleged she was issued a false letter of counsel on May 12, 2020. ( Id .)
B. Procedural History
Plaintiff filed her original Complaint on January 26, 2021. (Dkt. No. 1.) Plaintiff filed her Amended Complaint on March 30, 2021. (Dkt. No. 4.) Plaintiff filed her Second Amended Complaint on May 20, 2022. (Dkt. No. 59.) Defendants filed the instant Motion and an accompanying Memorandum of Law on August 19, 2022. ( See Not. of Mot. (Dkt. No. 69); Mem. of Law in Supp. of Mot. (“Defs.’ Mem.”) (Dkt. No. 70).) Plaintiff filed her Opposition on September 9, 2022. ( See Mem. of Law in Opposition to Mot. to Dismiss (“Pl.’s Mem.”) (Dkt. No. 74).) Defendants filed a Reply on September 23, 2022. ( See Reply Mem. in Further Supp. of Mot. (“Defs.’ Reply Mem.”) (Dkt. No. 78).)
II. Discussion
A. Standard of Review
The Supreme Court has held that while a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Bell Atl. Corp. v. Twombly
, 550 U.S. 544, 555 (2007)
(alteration and quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
Ashcroft
v. Iqbal
,
“[O]nce a claim has been stated adequately, it may be supported by showing any set of
facts consistent with the allegations in the complaint,”
id.
at 563, and a plaintiff must allege
“only enough facts to state a claim to relief that is plausible on its face,”
id.
at 570. However, if
a plaintiff has not “nudged [his] claim[] across the line from conceivable to plausible, the[]
complaint must be dismissed.”
Id.
;
see also Iqbal
,
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint,”
Erickson v. Pardus
,
B. EEOC Exhaustion
“Exhaustion of administrative remedies through the EEOC is an essential element of the
Title VII . . . statutory scheme[] and, as such, a precondition to bringing such claims in federal
court.”
Legnani v. Alitalia Linee Aeree Italiane
,
S.P.A
.,
2001) (quotation marks and citation omitted). The same is true for ADA claims.
Lester v.
Mount Pleasant Cottage Sch. Union Free Sch. Dist.
, No. 19-CV-5247,
1. Reasonably Related
The Second Circuit has recognized that “claims . . . not asserted before the EEOC may be
pursued in a subsequent federal court action if they are ‘reasonably related’ to those that were
filed with the agency.”
Shah v. N.Y. State Dep’t of Civil Serv.
,
“Defendants bear the burden of proving a failure to exhaust[.]”
Kane v. St. Raymond’s
Roman Catholic Church
, No. 14-CV-7028,
Defendants contend that Plaintiff’s EEOC charge does not address “numerous other claims” in the Second Amended Complaint which are “wholly distinct from and unrelated” to the events described in the EEOC charge “and are therefore administratively unexhausted” including:
(1) any reprimands Plaintiff received for being late to meetings during the 2019- 2020 school year; (2) Plaintiff’s failure to be hired for the 2020 summer school program; (3) the September 16, 2020 disciplinary letter of counsel; (4) Gaon’s allegations regarding Plaintiff’s failure to submit verification sheets on February 4, 2021; (5) any denial of Plaintiff’s requests for FMLA leave; (6) the failure to reinstate any days after Plaintiff was belatedly approved for FMLA leave; (7) allegations regarding employees “harassing” Plaintiff at her home by hand delivering correspondence and “spying” on her; (8) DePaul directing Plaintiff to an in-person meeting in June 2021; (9) DePaul “forcing” Plaintiff to be recorded on Zoom in 2020 and 2021; (10) DePaul requiring Plaintiff and others to provide make-up sessions in 2021 arising from the previous school year; (11) the failure to hire Plaintiff for the per-session social worker position in 2021; (12) the exclusion from meetings and emails by DePaul; (13) the denial of Plaintiff’s 2022 ADA request; and (14) Hamilton’s correspondence to the Board in December 2021 and February 2022.
(Defs.’ Mem. 8.)
“The exhaustion requirement applies not only to causes of action but also to underlying
factual allegations.”
Fanelli v. N.Y.
,
The Court first addresses whether Plaintiff exhausted her ADA claim and then determines whether the specific factual allegations Defendants challenge on exhaustion grounds were indeed exhausted. [1]
a. ADA Claim
The Court agrees that Plaintiff did not include any allegations regarding disability or lack
of accommodations in her EEOC. (
See generally
Compl. 12–15.) Plaintiff seems to argue that
the ADA claim is reasonably related because Plaintiff developed PTSD, anxiety, and depression
and requested FMLA leave as a result of the conduct alleged in the EEOC charge. (Pl.’s Mem.
6.) However, as Defendants rightfully note, the case Plaintiff relies upon does not support this
position. (Defs.’ Reply Mem. 2.) Indeed, in
Murray v. Brooklyn Public Library
, No. 96-CV-
2786,
classification asserted in administrative filings are not reasonably related.”
Shands v. Lakeland
Cent. Sch. Dist
., No. 15-CV-4260,
However, Plaintiff also argues that her “ADA disability . . . claim[] stem[s] from recent
retaliatory events after the filing of the original federal complaint, where the District refused to
accommodate her requests for reasonable accommodations.” (Pl.’s Mem 6.) The Second Circuit
has held that the second “reasonably related” exception “applies with equal force to retaliation
for filing a federal lawsuit as it does for filing an administrative charge.”
Soules v. Conn., Dep’t
of Emergency Servs. & Pub. Prot
.,
b. Individual Factual Allegations
i. Reasonable Scope of the Investigation Exception “The first, and most expansive, test for reasonable relation considers whether the alleged
discriminatory conduct would fall within the scope of the EEOC investigation which can
reasonably be expected to grow out of the charge of discrimination.”
Junior v. Erie Cnty. Med.
Ctr. Corp
., No. 18-CV-1014,
The September 16, 2020 “unfair” disciplinary letter of counsel and the alleged racially
disparate reprimands are within the scope of the EEOC charge because the charge alleges
Plaintiff was issued a false letter of counsel on May 12, 2020, which would have put the EEOC
on notice to investigate disciplinary issues.
See Rommage v. MTA Long Island Rail Rd
., No. 08-
CV-836,
ii. Precisely the Same Manner Exception
The instances of alleged discrimination that occurred after the EEOC investigation
concluded on October 28, 2020 cannot have fallen within the scope of the EEOC investigation
and therefore must fit within another exception.
See Green v. N.Y.C. Transit Auth.
, No. 15-CV-
8204,
While an “incident that is precisely the same as one included in an EEOC charge but
which takes place subsequent to the filing of the EEOC charge might not fall within the scope of
the EEOC investigation arising from the charge, since it might occur after the investigation was
completed” the “values associated with exhaustion are not entirely lost because the EEOC would
have had the opportunity to investigate, if not the particular discriminatory incident, the method
of discrimination manifested in prior charged incidents.”
DeBerry v. Brookdale Univ. Hosp. &
Med. Ctr.
,
The Court agrees that any denial of Plaintiff’s requests for FMLA leave, the failure to
reinstate any days after Plaintiff was belatedly approved for FMLA leave, allegations regarding
employees harassing Plaintiff at her home by hand delivering correspondence and spying on her,
DePaul directing Plaintiff to an in-person meeting in June 2021, DePaul forcing Plaintiff to be
recorded on Zoom in 2020 and 2021, DePaul requiring Plaintiff and others to provide make-up
sessions in 2021 arising from the previous school year, the failure to hire Plaintiff for the per-
session social worker position in 2021, and the denial of Plaintiff’s 2022 ADA request were not
carried out in precisely the same manner as the claims included in Plaintiff’s EEOC charge.
These allegations do not involve similar manipulations of Plaintiff’s schedule to overburden her,
false allegations levied against Plaintiff, or retaliation by preventing Plaintiff from attending
meetings.
See Bernard v. Care Design N.Y
., No. 20-CV-1527,
However, Plaintiff’s allegations regarding the false accusations Hamilton made in her
correspondence to the Board in December 2021 and February 2022 and Gaon’s false accusation
regarding Plaintiff’s failure to submit verification sheets on February 4, 2021 reasonably relate to
the allegations in the EEOC, because they are essentially the same as the earlier allegedly
wrongful conduct contained in the EEOC charge, which specifically alleged that Plaintiff was
issued a false letter of counsel.
See Rommage,
2. Timeliness
a. Title VII
“Title VII requires a plaintiff to pursue and exhaust administrative remedies before
bringing suit, and . . . the statute of limitations for filing a charge of discrimination with the
Equal Employment Opportunity Commission is 300 days.”
Ragone v. Atl. Video at the
Manhattan Ctr
.,
Defendants contend that because Plaintiff’s EEOC charge was filed on June 2, 2020, any occurrences prior to August 7, 2019, including allegations of unbalanced schedules that were assigned to Black but not white social workers (SAC ¶ 27) and Burnett commenting that a Black Special Education child with autism would wind up at Rikers Island ( id. ¶ 28), are untimely and cannot support Plaintiff’s Title VII claim. (Defs.’ Mem. 11.)
“To determine whether a claim was timely filed with the EEOC, the incidents of
employment discrimination . . . must be categorized as either discrete acts or continuing
violations.”
Castiblanco v. Am. Airlines, Inc
., No. 17-CV-5639,
The continuing violation doctrine does not apply to discrete unlawful acts, even if the
discrete acts were undertaken “pursuant to a general policy that results in other discrete acts
occurring within the limitations period.”
Chin
,
Courts in the Second Circuit have classified job assignments, including
disproportionately difficult assignments, as discrete discriminatory acts.
See, e.g., Bertuzzi v.
Copiague Union Free Sch. Dist.
, No. 17-CV-4256,
Accordingly, Plaintiff’s allegations that she was assigned an unbalanced schedule
assignment and subject to insensitive comments are discrete discriminatory acts.
See Gaffney v.
Vill. of Mamaroneck Police Dep’t
, No. 15-CV-5290,
However, “the Court may consider [Plaintiff’s] other allegations as ‘background
evidence’ to determine whether [an] adverse action was the result of a discriminatory motive.”
Hagan v. City of N.Y.
,
While the continuing violation doctrine is inapplicable to this case, this conclusion does
not prevent the Court from considering pre-August 7, 2019 events in the context of Plaintiff’s
Title VII hostile work environment claim. Unlike a claim for discrimination or retaliation, a
claim for hostile work environment, by its “very nature involves repeated conduct,” and, as such,
“cannot be said to occur on any particular day.”
Richard v. N.Y. City Dep’t of Educ
., No. 16-
CV-957,
b. New York State Human Rights Law
NYSHRL claims have a three-year statute of limitations.
Franchitti v. Cognizant Tech.
Sols. Corp
., No. 21-CV-2174,
C. Section 1981 Claims
Defendants argue Plaintiff improperly brings claims against a municipality and state
actors under 42 U.S.C. § 1981. (Defs.’ Mem. 12.) “[Section] 1981 does not provide a separate
private right of action against state actors,” and § 1983 provides the “exclusive federal remedy”
for such claims.
Duplan v. City of N.Y.
,
Generally, employment discrimination and retaliation claims brought under § 1981 are
subject to a four-year statute of limitations.
See Jones v. R.R. Donnelley & Sons Co
., 541 U.S.
369, 382 (2004);
Staten v. Village of Monticello
, No. 14-CV-4766,
D. Discrimination Claims
Title VII prohibits discrimination against an employee based on that employee’s “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). The NYSHRL echoes this prohibition and adds to it, prohibiting discrimination against an employee based on that employee’s “age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or status as a victim of domestic violence.” N.Y. Exec. Law § 296(1). Section 1983 states, in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
42 U.S.C. § 1983. Interpreting this language, the Supreme Court has stated that Section 1983 “is
not itself a source of substantive rights, but a method for vindicating federal rights elsewhere
conferred by those parts of the United States Constitution and federal statutes that it describes.”
Baker v. McCollan
,
Finally, Section 1981 provides that:
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
42 U.S.C. § 1981(a). The Second Circuit has construed this provision to prohibit employment
discrimination on the basis of race.
See Lauture v. Int’l Bus. Machs. Corp.
,
Claims of discrimination under Title VII, NYSHRL, and § 1981 (pursuant to §1983) are
analyzed under the familiar three-part framework set forth in
McDonnell Douglas Corp. v.
Green
,
Under the
McDonnell Douglas
framework, a plaintiff must first show that “(1) she is a
member of a protected class; (2) she is qualified for her position; (3) she suffered an adverse
employment action; and (4) the circumstances give rise to an inference of discrimination.”
Weinstock v. Columbia Univ
.,
Because “a plaintiff is not required to plead a prima facie case under
McDonnell
Douglas
, at least as the test was originally formulated, to defeat a motion to dismiss,”
Vega
, 801
F.3d at 84 (italics omitted), the Court need only concern itself with the first phase of the
McDonnell Douglas
framework,
see Munoz-Nagel v. Guess, Inc
., No. 12-CV-1312, 2013 WL
6068597, at *1 (S.D.N.Y. Nov. 15, 2013) (“[A] [p]laintiff need not make out a prima facie case
at the pleading stage, and may withstand a motion to dismiss by providing a short and plain
statement of the claim that shows that she is entitled to relief that gives [the defendant] fair
notice of the . . . discrimination claim and the grounds upon which it rests.” (italics and citation
omitted)). “Although [the] [p]laintiff need not allege facts sufficient to make out a prima facie
case for any of her discrimination claims in her [c]omplaint, the elements thereof provide an
outline of what is necessary to render her claims for relief plausible.”
Sommersett v. City of N.Y.
,
No. 09-CV-5916,
1. Race Discrimination Under Title VII, §1983, and NYSHRL Defendants appear to concede—or at least do not contest for purposes of their Motion— that Plaintiff (1) is a member of a protected class as a Black woman and (2) was qualified for the position she held as a social worker. ( See generally Defs.’ Mem.; Defs.’ Reply Mem.) However, Defendants argue that Plaintiff cannot establish a prima facie case of discrimination because she did not suffer an adverse employment action. ( See Defs.’ Mem. 13–15.) And, even assuming arguendo that Plaintiff could demonstrate that she suffered an adverse employment action, Defendants argue Plaintiff has not plausibly alleged that Defendants’ actions occurred under circumstances giving rise to an inference of discrimination. ( See id. at 8–11.) Plaintiff argues that she suffered multiple adverse employment actions and has sufficiently alleged discriminatory intent. ( See generally Pl.’s Mem.)
a. Adverse Employment Action
“An adverse employment action is ‘a materially adverse
change
in the terms and
conditions of employment.’”
Mathirampuzha v. Potter
,
To be materially adverse, a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. Examples of such a change 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.
(quoting
Sanders
,
“[A]dverse employment actions . . . must be ‘more than trivial, insubstantial, or petty.’”
Colon v. Fashion Inst. of Tech. (State Univ. of N.Y.)
,
Plaintiff claims that she suffered adverse employment action in the form of “an
unbalanced work schedule and high caseload.” (Pl.’s Mem. 10.) The Second Circuit has “held
that the assignment of an excessive workload” as a result of “discriminatory intent, can be an
adverse employment action,” because it is “more disruptive than a mere inconvenience or an
alteration of job responsibilities.”
Vega
,
The earliest date that this Court can consider under various statutes of limitation is June
2, 2017. For the 2018–2019 school year, Plaintiff alleges that her schedule was unbalanced
because she had to service 26 students at Rebecca Turner in two days and 13 at Lincoln in three
days which negatively affected her ability to do her job. (SAC ¶ 26.) Plaintiff further alleges
that only Black social workers were assigned such schedules that year—no non-Black social
workers were assigned such “strained” schedules. (
Id
. ¶ 27.) Because Plaintiff has pled that her
schedule resulted in a disproportionately heavy workload as compared to her non-Black
colleagues, namely that her caseload at Rebecca Turner was oversubscribed, which negatively
affected her ability to perform her job duties, she has sufficiently alleged an adverse action.
See
Alexander v. N.Y. City Dep’t of Educ.
, No. 19-CV-7023,
However, the allegations made in the Second Amended Complaint that pertain to the
2019–2020 school year, namely that the number of Plaintiff’s students on her caseload increased
to 57 students between Lincoln (2.5 days and 13 students) and Rebecca Turner (44 students and
2.5 days), are silent as to whether that workload was excessive or unbalanced compared to her
other colleagues. (SAC ¶ 30.)
[4]
“It is only where a plaintiff is given a workload heavier that
similarly situated employees where such a workload may constitute an adverse employment
action.”
Shukla v. Deloitte Consulting LLP
, No. 19-CV-10578,
Next, Plaintiff argues that she applied for and was denied “the right to work during the
2020 summer program and earn additional income and seniority with respect to the summer
program,” which she had worked at the previous two summers, and “per session work for social
workers to provide make-up counseling services before and after school.” (Pl.’s Mem. 11.)
Plaintiff specifically alleges that false accusations that she declined to provide services to
students prevented her from obtaining per session opportunities. (SAC ¶¶ 57, 64.) Courts in the
Second Circuit have held that the denial of per session and summer work can constitute adverse
employment actions.
See, e.g., DeLaRosa v. N.Y. City Dep’t of Educ
., No. 21-CV-4051, 2022
WL 2752589, at *4 (S.D.N.Y. July 14, 2022) (holding that denying plaintiff work for summer
school which prevented plaintiff from earning additional wages constituted an adverse
employment action);
Zoulas v. N.Y. City Dep’t of Educ
.,
Finally, Plaintiff claims she was “unfairly scrutinized and reprimanded by her
administration, [and] received unwarranted disciplinary letters.” (Pl.’s Mem. 11.) Both the
Second Circuit and courts within the Second Circuit have made clear that many negative
personnel actions taken by employers do not constitute adverse employment actions sufficient to
establish a prima facie case of employment discrimination when they do not affect the terms and
conditions of employment. For instance, “criticism of an employee (which is part of training and
necessary to allow employees to develop, improve[,] and avoid discipline) is not an adverse
employment action.”
Tepperwien v. Entergy Nuclear Ops., Inc.
,
b. Causation
“Under Title VII and the NYSHRL, a plaintiff need not prove (or plead) that ‘the causal
link between injury and wrong is so close that the injury would not have occurred but for the
act.’”
Farmer v. Shake Shack Enterprises, LLC
,
“A showing of disparate treatment—that is, a showing that an employer treated [the]
plaintiff less favorably than a similarly situated employee outside his protected group—is a
recognized method of raising an inference of discrimination for the purpose of making out a
prima facie case.’”
Ruiz
,
Plaintiff’s allegations that non-Black social workers did not have unbalanced schedules
while Black social workers did—employees who hold the same educational degree and title—
suffice to allege similarly situated comparators at this stage.
See Syeed v. Bloomberg L.P
., 568
F. Supp. 3d 314, 321 (S.D.N.Y. 2021) (holding plaintiff plausibly alleged an inference of
discrimination when comparators who received preferential treatment were her “team members”
and performed “similar job duties” to her);
Johnson
,
That Plaintiff did not provide names of specific comparators is not fatal to her claim.
See Thomas v. Venditto
,
Plaintiff, however, does not provide any comparators with regards to her allegations
regarding her loss of summer session and per session opportunities. (
See generally
SAC.)
[5]
Plaintiff posits that Burnett’s comment that a Black Special Education child with autism would
wind up at Rikers Island supports an inference of race-based animus. (Pl.’s Mem. 13.)
Allegations of discriminatory comments directed at a plaintiff’s racial group are a recognized
method of establishing discriminatory intent.
See Chertkova v. Conn. Gen. Life Ins. Co
., 92 F.3d
81, 91 (2d Cir. 1996) (noting that “circumstances that give rise to an inference of discriminatory
motive include actions or remarks made by decisionmakers that could be viewed as reflecting a
discriminatory animus”). “In determining whether a remark is probative [of discriminatory
intent], [courts] have considered four factors: (1) who made the remark (i.e., a decision-marker, a
supervisor, or a low-level co-worker); (2) when the remark was made in relation to the
employment decision at issue; (3) the content of the remark (i.e., whether a reasonable juror
could view the remark as discriminatory); and (4) the context in which the remark was made
(i.e., whether it was related to the decision-making process).”
Henry v. Wyeth Pharm., Inc
., 616
F.3d 134, 149 (2d Cir. 2010). “The more removed remarks are from an employer’s adverse
action, the more likely that such remarks will be non-probative stray remarks.”
Smith v. N.Y. &
Presbyterian Hosp.
,
While the Second Amended Complaint alleges Burnett was Plaintiff’s supervisor,
Plaintiff does not allege Burnett had any responsibility for Plaintiff’s schedule, caseload, or
Plaintiff’s inability to work during the summer session or per session during the year. (
See
generally
SAC.) Additionally, Plaintiff only alleges that the comment was made at some point
in 2018—whereas the denials of summer and per session work occurred after 2020. (
Id
. ¶¶ 41,
55, 57.) Because Burnett’s comment is not related in time or context to any employment
decision at issue in this case, the remark is not probative of discriminatory intent.
See Alexis
Paupaw-Myrie v. Mount Vernon City Sch. Dist. & Natasha Hunter-Mcgregor
., No. 21-CV-
11237,
Because none of Plaintiff’s surviving race discrimination claims was exhausted under Title VII, Plaintiff’s Title VII race discrimination claim does not survive.
2. Disability Discrimination Under NYSHRL
“The elements of a NYSHRL discrimination claim are generally the same as those under
the ADA[.]”
Scarville v. Living Res. Corp.
, No. 21-CV-807,
Plaintiff has not alleged that her unbalanced schedule or the denial of her ability to work over the summer session or per session work are in any way related to any disability. ( See generally SAC.) Plaintiff first alleges she was experiencing panic attacks and symptoms of depression in relation to her February 11, 2021 application for FMLA leave. ( Id . ¶ 45.) The first mentioned reference to ADA accommodations is on June 1, 2021, after Plaintiff returned to her social work position following her leave. ( Id . ¶ 52.) The unbalanced schedule and denial of summer employment adverse employment actions predate any disability that Plaintiff has alleged to have. Furthermore, Plaintiff does not link the denial of per session work to her alleged disability in any way, for instance, by identifying any instances of direct animus or differential treatment of similarly situated competitors. ( See generally id .)
Insofar as Plaintiff claims that the Defendants’ failure to provide her with reasonable
accommodations constitutes an adverse employment action in the NYSHRL discrimination
context, such a claim is misguided. (SAC ¶ 85.) Discrimination claims may be brought under a
theory of adverse employment action or of failure to provide reasonable accommodation.
McMillan v. City of N.Y
,
Plaintiff may also be alleging that directing her to undergo a medical examination
constituted an adverse employment action in violation of the NYSHRL protection against
disability discrimination. (SAC ¶ 85.) However, “sending plaintiff to undergo a medical
examination, even if inappropriate under the circumstances, does not constitute an adverse
employment action unless accompanied by a material change in the ‘terms and conditions’ of
plaintiff’s employment.”
Hoeffner v. Cnty. of Orange
, No. 17-CV-9344,
Because Plaintiff has not alleged an adverse employment action that occurred because of
any disability, that claim is dismissed.
Berger
,
E. Retaliation Under Title VII, §1983, and NYSHRL
Title VII’s anti-retaliation provision prohibits an employer from “discriminat[ing] against
any of his employees . . . because [the employee] has opposed any practice made an unlawful
employment practice by this subchapter[.]” 42 U.S.C. § 2000e-3(a). In other words, “Title VII
forbids an employer to retaliate against an employee for . . . complaining of employment
discrimination prohibited by Title VII[.]”
Kessler v. Westchester Cnty. Dep’t of Soc. Servs.
, 461
F.3d 199, 205 (2d Cir. 2006). Courts analyze claims for retaliation pursuant to Title VII under
the familiar framework set forth by the Supreme Court in
McDonnell Douglas
.
See Zann Kwan
v. Andalex Grp. LLC
,
To establish a prima facie case of retaliation, the plaintiff must show that: “(1) [s]he was
engaged in an activity protected under Title VII; (2) [her] employer was aware of [her]
participation in the protected activity; (3) the employer took adverse action against [her]; and (4)
a causal connection existed between the protected activity and the adverse action.”
Zann Kwan
,
Retaliation claims under §1981, § 1983, and the NYSHRL are subject to the same
standard.
See Goonewardena v. N.Y. Workers Comp. Bd
.,
1. Adverse Employment Action
“The Supreme Court has held that in the context of a Title VII retaliation claim, an
adverse employment action is any action that ‘could well dissuade a reasonable worker from
making or supporting a charge of discrimination.’”
Vega
,
Defendants argue that Plaintiff has failed to allege an adverse employment action and a
causal nexus between the allegedly adverse acts and any protected activity. (Defs.’ Mem. 18–
21.) As discussed above,
supra § II.D.1.a
, the denial of summer session or per session work
constitutes an adverse action. Plaintiff additionally argues that “Gaon purposely set Plaintiff’s
schedule in an unreasonable manner because Plaintiff drafted the 2016 letter complaining about
[] Gaon’s leadership, which delayed [] Gaon’s grant of tenure by a year.” (Pl.’s Mem. 16.)
During the 2018–2019 school year, Plaintiff alleges she was specifically told she had been
assigned an unbalanced schedule because of her 2016 letter complaining of discrimination which
delayed Gaon’s tenure by a year. (SAC ¶ 27.) That same year, Plaintiff alleges she had to
service 26 students at one school location in two days and only 13 at another in three days which
was an unbalanced or disproportionate schedule compared with non-Black social workers. (
Id
.
¶¶ 26–27.) As in the discrimination context, “a disproportionately heavy workload can
constitute an adverse employment action” in the retaliation context.
Felty v. Regeneron Pharms.,
Inc
., No. 18-CV-5667,
Plaintiff further claims that the rescinding of a grievance agreement regarding her
schedule which had been reached on October 10, 2019 constituted an adverse action. (Pl.’s
Mem. 16.) However, Plaintiff has not alleged that her schedule for the 2019–2020 year was
disproportionately heavy or unbalanced compared with those similarly situated. (
See generally
SAC.) As discussed above, in the retaliation context as well as the discrimination context, a
Plaintiff must show an assigned workload was “disproportionately heavy” to constitute an
adverse employment action.
Grana v. Potter
, No. 06-CV-1173,
Plaintiff additionally claims that Defendants retaliated against her through the denial of
her accommodation requests. (Pl.’s Mem. 17.) Because denials of accommodations can
constitute adverse actions in the retaliation context, Plaintiff has sufficiently alleged she suffered
an adverse action in the form of her January 2022 disability accommodation request denial.
See Murray v. United Parcels Serv., Inc
., No. 20-CV-1427,
Next, Plaintiff states that in retaliation for filing a complaint about racial discrimination
against Gaon, Gaon “embarrassed, humiliated and berated” Plaintiff in front of “nearly 50
clinicians and supervisors.” (Pl.’s Mem. 16.) However, courts have repeatedly held that such
behavior does not amount to an adverse employment action in a retaliation context.
See, e.g.,
Rakowsky v. Johnson,
No. 15-CV-169,
Finally, as in the discrimination context, requiring Plaintiff to submit to a medical
examination does not constitute an adverse action in the retaliation context.
See Brady v.
Dammer
,
2. Causation
With respect to the causation element for a claim of retaliation, “a plaintiff must plausibly
plead a connection between the act and [her] engagement in protected activity.”
Vega
, 801 F.3d
at 90. A plaintiff can demonstrate the causal connection in one of two ways: “(1) indirectly, by
showing that the protected activity was followed closely by discriminatory treatment, or through
other circumstantial evidence such as disparate treatment of fellow employees who engaged in
similar conduct; or (2) directly, through evidence of retaliatory animus directed against the
plaintiff by the defendant.”
Gordon v. N.Y.C. Bd. of Educ
.,
Under Title VII, “for an adverse retaliatory action to be ‘because’ a plaintiff made a
charge, the plaintiff must plausibly allege that the retaliation was a ‘but-for’ cause of the
employer’s adverse action.”
Vega
,
Defendants argue that Plaintiff cannot establish causation for the unbalanced schedule
because the adverse action occurred before Plaintiff’s alleged protected activity. (Defs.’ Mem.
14–15.) They cite to
Tenemille v. Town of Ramapo
, No. 18-CV-724,
Plaintiff additionally alleges that on December 20, 2021, she filed an “internal claim of harassment, retaliation, and intimidation against Superintendent Hamilton, with Adrianne G. Saunders, Board President and Ingerman Smith LLP, District Council.” (SAC ¶ 58.) She alleges that she additionally “filed an internal claim of harassment, retaliation, and intimidation” against DePaul with Tiggs that same day. ( Id .) Approximately one month later, on January 18, 2022, Plaintiff submitted a request to Tiggs for ADA accommodations which was denied at the direction of Tiggs 10 days later on January 28, 2022. ( Id . ¶¶ 60–61.)
“There is no firm outer limit to the temporal proximity required, but most courts in the
Second Circuit have held that a lapse of time beyond two or three months will break the causal
inference.”
De Figueroa v. N.Y.
,
However, Plaintiff’s retaliation claim predicated upon the denial of summer work does
not survive because Plaintiff claims approximately six months elapsed between her protected act,
the January 29, 2020 letter regarding her race discrimination complaint, and her denial of
summer work on approximately July 7, 2020. (SAC ¶¶ 38, 41.)
See Torre
, 493 F. Supp. 3d at
289 (dismissing a retaliation claim where “the alleged retaliatory conduct took place more than
five months after engaging in protected activity” and the plaintiff failed to “allege any other
evidence of a causal connection”);
Ray v. N.Y. State Ins. Fund
, No. 16-CV-2895, 2018 WL
3475467, at *11 (S.D.N.Y. July 18, 2018) (explaining that “a temporal gap of more than a few
months will generally be insufficient to raise a plausible inference of causation without more”)
(collecting cases);
Wojcik v. Brandiss
,
Accordingly, Plaintiff’s §1983 and NYSHRL race retaliation claims survive. However,
because none of Plaintiff’s surviving retaliation claims were exhausted under Title VII,
Plaintiff’s Title VII retaliation claim does not survive. Additionally, as Plaintiff has not alleged
any adverse action that resulted from a protected act related to a disability, her NYSHRL
retaliation claim based on disability is dismissed.
See Piligian v. Ichan Sch. of Med. at Mount
Sinai
, No. 17-CV-01975,
F. Hostile Work Environment Under Title VII, § 1983, and NYSHRL Defendants move to dismiss Plaintiff’s hostile work environment claims on the basis that Plaintiff has failed to establish “sufficiently severe or pervasive conduct, or that the conduct was due to Plaintiff’s protected statuses.” (Defs.’ Mem. 17.)
“A hostile work environment claim requires a showing [1] that the harassment was
‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an
abusive working environment,’ and [2] that a specific basis exists for imputing the objectionable
conduct to the employer.”
Alfano
,
A plaintiff must also plausibly allege “that the hostile work environment was caused by
animus towards her as a result of [her] membership in a protected class.”
Bermudez v. City of
N.Y.
,
The Second Circuit has held that “[p]roving the existence of a hostile work environment
involves showing both objective and subjective elements: the misconduct shown must be severe
or pervasive enough to create an objectively hostile or abusive work environment, and the victim
must also subjectively perceive that environment to be abusive.”
Feingold
,
“[A]llegations of a heavier workload alone can[ ] support a viable hostile work
environment claim” if the “plaintiff was subjected to ‘disproportionately burdensome work
assignments.’”
Wilson v. Family Dollar Stores of N.Y., Inc
., No. 06-CV-639,
Plaintiff alleges she was assigned a disproportionate workload in the 2018–2019 school
year and was subject to unfair discipline in the 2019–2020, both on account of her race. (SAC ¶¶
25–27, 31.) Accordingly, she has sufficiently alleged a hostile work environment.
See Cherry v.
N.Y. City Hous. Auth
.,
Because acts contributing to Plaintiff’s hostile work environment claim took place within the Title VII statutory period, namely the disparate discipline Plaintiff was subject to during the 2019-2020 school year, her Title VII claim survives.
Plaintiff, however, has failed to allege a hostile work environment based on her disability
status under NYSHRL. The denial of her accommodation request, the required medical exam,
and any harassment Plaintiff experienced while on leave do not constitute a hostile work
environment.
See Kugel v. Queens Nassau Nursing Home Inc
.,
G. FMLA Claims
1. FMLA Interference
To establish a claim of FMLA interference, a plaintiff must establish that: (1) “[she] is an
eligible employee under the FMLA”; (2) the defendant is “an employer as defined by the
FMLA”; (3) the plaintiff “was entitled to take leave under the FMLA;” (4) the plaintiff gave the
employer notice of his or her intention to take leave; and (5) the plaintiff “was denied benefits to
which [she] was entitled under the FMLA.”
Graziadio v. Culinary Inst. of Am
.,
Plaintiff claims that “Defendants interfered with and wrongfully denied [Plaintiff] her
FMLA protected rights in March 2021.” (Pl.’s Mem. 22; SAC ¶ 89 (“[Defendants] interfered
with Plaintiff’s FMLA rights by wrongfully denying her FMLA request in March 2021”).)
Defendants argue that Plaintiff fails to plausibly allege she was eligible under the FMLA.
(Defs.’ Mem. 23.) An “eligible employee” under the FMLA refers to “an employee who has
been employed . . . for at least 12 months by the employer” and “for at least 1,250 hours of
service with such employer during the previous 12-month period.” 29 U.S.C. § 2611(2)(A)(i)–
(ii). “The determination of whether an employee . . . [is eligible] must be made as of the date the
FMLA leave is to start.” 29 C.F.R. § 825.110(d). Eligibility is a threshold issue, and it is
insufficient for Plaintiff to “merely assert in a conclusory manner that [s]he is eligible without
stating any facts that relate to the definition of an eligible employee.”
Smith v. Westchester
Cnty
.,
It is unclear from the Second Amended Complaint how many hours Plaintiff worked in
the 12 months before her FMLA request was denied in March 2021, as Plaintiff does not make
any factual assertions regarding how many hours she worked in the 12 months preceding or her
caseload in the 2020-2021 school year. (
See generally
SAC.) While Plaintiff worked five days a
week during the 2019-2020 school year, it appears Plaintiff did not work over the summer of
2020. “[T]o the extent that plaintiff has failed to assert that [she] worked the requisite number of
hours to qualify for FMLA leave, [plaintiff] has failed to meet the pleading requirements for
FMLA eligibility.”
Bakeer v. Nippon Cargo Airlines, Co., Ltd.
, Nos. 09-CV-3374, 09-CV-3377,
09-CV-3378,
2. FMLA Retaliation
FMLA retaliation claims are analyzed under the three-step burden-shifting analysis set
forth in
McDonnell Douglas
.
See Potenza v. City of N.Y.
,
But-for causation is not required under the FMLA.
See Woods v. START Treatment &
Recovery Centers, Inc.
,
Defendants argue that Plaintiff cannot establish FMLA retaliation because (1) she has not plausibly alleged that she was an eligible employee or entitled to take leave under the FMLA, (2) she suffered no adverse employment action, and (3) she failed to show any causal nexus between her leave and any adverse action. (Defs.’ Mem. 23–24.) Plaintiff argues she has pled an FMLA retaliation claim because she was required to undergo a medical examination after requesting leave and was subject to “continued harassment and retaliation” during her time on leave and ultimately “made a police report” because Defendants were “constantly bothering her by coming onto her property, knocking on her door, leaving letters in her mailbox, driving up and down the street in front of her home, [and] pacing up and down her driveway.” (Pl.’s Mem. 23.)
In order for a plaintiff to “exercise rights protected under the FMLA,” the plaintiff must
demonstrate she actually has a valid claim to FMLA benefits.
Milne v. Navigant Consulting
, No.
08-CV-8964,
Courts have held that when a plaintiff is granted leave under the FMLA, that plaintiff has
exercised rights protected under the FMLA.
See Potenza
,
The FMLA’s protection against retaliation “encompasses the employer’s conduct both
during and after the employee’s FMLA leave.”
Ottley-Cousin
,
H. Personal Involvement
“[C]laims under 42 U.S.C. § 1983 [require] a showing of personal involvement by the
defendant . . . for liability under § 1981.”
Sherman v. Yonkers Pub. Schs.
, No. 21-CV-7317,
The only Defendants Plaintiff has alleged were personally involved in the surviving claims—discrimination claims stemming from the unbalanced schedules, retaliation claims stemming from the unbalanced schedules and the accommodation requested denial, and hostile work environment claims stemming from unbalanced schedules and unfair discipline—are Gaon and Tiggs. (SAC ¶¶ 27, 44, 61.) [9]
Because Plaintiff has not alleged the involvement of Burnett, DePaul, Sperling, or
Hamilton, claims against them must be dismissed.
Littlejohn
,
I. Municipal Liability
When courts construe § 1981 claims as brought under § 1983, plaintiffs must plausibly
allege that the “challenged acts were performed pursuant to a municipal policy or custom, as
required to maintain a § 1983 action against a municipality.”
Duplan
,
Defendants did not respond to the substance of Plaintiff’s argument that her § 1981 claim should be construed as brought under § 1983 and that the “challenged acts were in fact performed pursuant to municipal policy and custom.” (Pl.’s Mem. 18–20; Defs.’ Reply Mem. 8– 9.) Defendants simply state incorrectly that Plaintiff “mistakenly conflates the § 1981 standard with that of a § 1983 Monell claim.” (Defs.’ Reply Mem. 9.) Accordingly, this Court does not construe Defendants as moving to dismiss claims against the municipality on the basis that Plaintiff has failed to allege that the challenged acts were performed pursuant to policy or custom.
III. Conclusion
For the foregoing reasons, Defendants’ Motion is denied in part and granted in part.
Defendants’ Motion is granted with regard to Plaintiff’s ADA, Title VII discrimination and
retaliation, NYSHRL disability, and FMLA interference claims. Defendants’ Motion is denied
with regard to Plaintiff’s §1981 claims brought under §1983 and Plaintiff’s FMLA retaliation,
Title VII hostile work environment, and race-based NYSHRL claims. Plaintiff’s ADA,
NYSHRL disability, and Title VII discrimination and retaliation claims are dismissed without
prejudice. However, this Court’s Individual Practice Rules state “[i]f a complaint is ultimately
dismissed on the grounds set forth in the movant’s initial letter, it may be dismissed
with
prejudice
as the nonmovant already had a chance to research the movant’s arguments and amend
as needed.” Individual Rules of Practice of the Honorable Kenneth M. Karas (May 20, 2020),
https://www.nysd.uscourts.gov/sites/default/files/practice_documents/KMK%20Individual%20P
ractices%202-5-2020%20update.pdf. Defendants sent Plaintiff a pre-motion letter on June 3,
2022 that addressed the relevant deficiencies in Plaintiff’s FMLA interference claim and Plaintiff
chose to oppose the Motion rather than amend. (Dkt. No. 60.) Accordingly, Plaintiff’s FMLA
interference claim is dismissed with prejudice.
See Jones v. Cuomo
,
The Court will hold a conference in this case on May 3, 2023, at 12:00 P.M. The Clerk of Court is respectfully directed to terminate the pending Motion. (Dkt. No. 69.) SO ORDERED.
Dated: March 29, 2023
White Plains, New York
KENNETH M. KARAS United States District Judge
Notes
[1] Defendants do not specifically argue that Plaintiff has failed to exhaust her hostile work
environment claim. In any event, this Court determines that Plaintiff exhausted her hostile work
environment claim. A hostile work environment exists “[w]hen 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.”
Harris
,
[2] Plaintiff’s sole arguments regarding the retaliation exception have been addressed above, supra II.B.1.a.
[3] Here, Defendants’ actions are “under color of state law as [Defendants] are employees
of a public school.”
Vega
,
[4] There are no allegations regarding an unbalanced schedule for the 2020-2021 academic year. ( See generally SAC.) Plaintiff was initially assigned in unbalanced schedule for the 2021- 2022 academic year, but reached an agreement regarding her assignment in September 2021. ( Id . ¶ 52.)
[5] Plaintiff alleges that she was reprimanded for arriving late to a meeting while similarly situated Caucasian colleagues who arrived later were not. (SAC ¶ 31.) However, this allegation does not support Plaintiff’s contention that she was discriminated on the basis of race as it pertains to summer employment and per session work, for which she does not supply comparators.
[7] That the assignment of a disproportionately unbalanced workload may have also been
motivated by racial discrimination does not negate but-for cause. A but-for cause need not be
the only cause of the employer’s actions; in fact, an adverse employment action may have
“multiple but-for causes, each one of which may be sufficient to support liability.”
Zann Kwan
,
[8] Defendants do not argue that the conduct creating a hostile work environment cannot be imputed to the employer or that Plaintiff did not subjectively perceive the work environment to be abusive. ( See generally Defs.’ Mem.)
[9] While Plaintiff has alleged that Bennett sent Plaintiff a threatening disciplinary letter of counsel for not completing a schedule on May 12, 2020, Plaintiff has not alleged that this discipline was unwarranted, unfair, or discriminatory.