Opinion
21-CV-2025 (PGG) (BCM)
01-09-2023
JILLIAN BLOUGH, Plaintiff, v. DR. RICHARD IZQUIERDO HEALTH AND SCIENCE CHARTER SCHOOL, et al., Defendants.
REPORT AND RECOMMENDATION TO THE HON. PAUL G. GARDEPHE
BARBARA MOSES, United States Magistrate Judge
Plaintiff Jillian Blough brings this action against her former employer, the Dr. Richard Izquierdo Health and Science Charter School (the School), and her former supervisor, Richard Burke. The action arises out of the termination of plaintiff's employment in October 2018, which she alleges was in retaliation for her husband's departure from the School earlier that year. Now before me for report and recommendation is defendants' motion to dismiss all of plaintiff's claims, which the Court construes as made pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. 31.) For the reasons that follow, the motion should be granted and the case should be dismissed.
I.BACKGROUND
A. Facts Alleged by Plaintiff
The School is located in the Bronx, New York. Am. Compl. (Dkt. 27) ¶ 5. It "receives a substantial portion of its funding and oversight from the City of New York and the New York City Department of Education." Id. Defendant Burke was the principal of the School, for which he "function[ed] as a de facto Superintendent," and had control over all decisions within the School. Id. ¶ 6. In July 2014, the School hired plaintiff as an art teacher for middle and high school students. Id. ¶¶ 6, 8-9. Plaintiff's husband, Brian Blough, was already employed at the School, and Burke was aware of their marital relationship. Id. ¶¶ 11-12. Mr. Blough left the School in June 2018, taking a job as the principal at another school. Id. ¶¶ 13-14. A number of teachers at the School followed Mr. Blough to his new institution. Id. ¶ 14.
Burke was upset by Mr. Blough's departure, and by the fact that he took other teachers with him. Am. Compl. ¶ 15. Burke made a "declaration of war" against Mr. Blough and suggested to another School employee, Merrill Kazanjian, that he planned to fire plaintiff in retaliation. Id. Shortly after Mr. Blough left the School, plaintiff discovered a job posting for her position on a website for job-seekers. Id. ¶ 16. When she questioned Burke, he responded that her job was not in danger. Id. However, when the school year began that fall, Burke's attitude towards plaintiff was "notably colder and less collegial." Id. ¶ 17. Plaintiff was assigned a co-teacher (who ultimately replaced her), and was also assigned new responsibilities, including teaching classes for which she was not trained, certified, or qualified. Id. ¶¶ 17-18. Additionally, the School began reprimanding her for behavior that was condoned in the past, such as her arrival time. Id. ¶ 19.
On October 26, 2018, when plaintiff entered her art classroom, she "found Burke there," at which point he fired her. Am. Compl. ¶ 20. There was no "advanced [sic] notice or work-related basis" for the termination. Id. Burke stated only that "had no choice but to let [her] go." Id. Plaintiff alleges that she was terminated "solely based on her intimate association with Brian [Blough], as his wife," or (apparently in the alternative) that Burke was "motivated, at least in part, by her relationship with Brian[.]" Id. She further alleges that Burke acknowledged the motivation for the termination in his conversation with Kazanjian, stating "that he would fire [plaintiff] as retaliation for Brian leaving the School and taking various employees with him." Id. ¶¶ 15, 20. Because the school year had already started, plaintiff was unable to find another teaching position until the following summer, when she started a part-time teaching position. Id. ¶ 21.
Plaintiff alleges that the termination of her employment "was intended to and did in fact intrude upon and interfere with" her marital relationship. Am. Compl. ¶ 22. The intrusion consisted of the financial strain attendant upon her job loss, which in turn caused Mr. Blough to take on additional work to support the family, leaving plaintiff to assume additional parenting duties. Id. ¶ 22-23. These adjustments also "delayed and impacted an adoption [the Bloughs] were pursuing." Id. ¶ 22. No further details are provided. Plaintiff does not allege that the couple divorced, separated, or contemplated either. Nor does she allege any other facts suggesting that their marital bond frayed as a result of her job loss.
In the Amended Complaint, plaintiff asserts claims against the School under unspecified provisions of the New York City Administrative Code for "adverse employment actions, including her termination, based on her marital status," Am. Compl. ¶ 26, and under 42 U.S.C. § 1983, for violation of her rights under the First and Fourteenth Amendments to the United States Constitution. Id. ¶ 27. She asserts claims against Burke for aiding and abetting the School's violations of the New York City Administrative Code, id. ¶ 29, and for "unlawfully participat[ing] in and/or permit[ing]" its violations of her constitutional rights. Id. ¶ 28. She seeks "compensatory, emotional, physical, and punitive damages (where applicable), lost pay, front pay, injunctive relief, and any other damages permitted by law," plus fees and costs. Id. at 7.
B. Procedural History
Plaintiff filed her initial Complaint on March 9, 2021. (Dkt. 1.) Defendants answered that Complaint on June 21, 2021. (Dkt. 15.) After the initial pretrial conference, the case was referred to the Court's mediation program, but the mediation proved unsuccessful. (Dkts. 17, 21.)
On August 25, 2021, defendants requested a pre-motion conference, arguing that plaintiff failed to state a viable constitutional claim under either the First or the Fourteenth Amendment. Def. Ltr. (Dkt. 22) at 2. As to the Fourteenth Amendment claim, defendants argued, among other things, that plaintiff failed to allege "that her termination caused an undue intrusion into her marital relationship," much less that it "had the likely effect of ending" that relationship. Id. In response, plaintiff agreed that her First Amendment claim was deficient, because she could not allege that she was fired in retaliation for any "speech" by her husband (or anyone else), but asserted that her Fourteenth Amendment claim was sufficiently pled. (Dkt. 24.)
On February 24, 2022, the Honorable Paul G. Gardephe, United States District Judge, held a pre-motion conference, after which he gave plaintiff leave to amend her complaint in light of defendants' anticipated challenge. (Dkt. 26.) Plaintiff filed her Amended Complaint on March 7, 2022. The instant motion to dismiss, which defendants filed in lieu of an answer, followed on April 15, 2022. That same day, the parties filed a stipulation formally dismissing plaintiff's § 1983 claim under the First Amendment (Dkts. 30, 35), leaving her Fourteenth Amendment claim for adjudication, along with her local law claim. On April 18, 2022, the motion to dismiss was referred to me for report and recommendation. (Dkt. 36.)
C. The Parties' Positions
Defendants argue that plaintiff has failed to state a viable claim under the Fourteenth Amendment because she cannot allege either (i) that Burke "specifically intended to interfere with the family relationship" when he fired her or (ii) that his decision had the "likely" (or actual) effect of destroying or unduly interfering with her marital relationship. Def. Mem. (Dkt. 34) at 5-9. Defendants further contend that the School is not a legal entity capable of being sued and that, even it if were, Burke was not a "final policymaker" upon whose conduct Monell liability can be predicated. See Id. at 9-11; Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658 (1978). Defendants add that the Court should decline to exercise its supplemental jurisdiction over any remaining non-federal claims. See Id. at 11-12.
In her opposition brief, plaintiff argues she has adequately stated a Fourteenth Amendment claim because she alleges (i) that Burke fired her "due to her relationship with Brian Blough" and (ii) that the termination "did impact her family unit," both economically and emotionally. Pl. Opp. Mem. (Dkt. 37) at 4-5. She also argues that the School is a suable entity because it is a "standalone" charter school rather than simply a part of a larger school district, see Id. at 2-3, and that Burke was a final policymaker with respect to the School for purposes of its potential Monell liability. See Id. at 3-4. Plaintiff does not discuss her local law claim or respond to defendants' supplemental jurisdiction argument.
Plaintiff supports her argument concerning the School's "standalone" status and Burke's policymaking responsibilities with an affidavit, signed by her husband, stating that when he worked at the School it had "its own budget, board, [and] policies, and directly [paid] its employees," and that Burke "was definitely a policymaker who could "make firing decisions without Board approval." (Dkt. 37-1, ¶¶ 3-4.) However, when presented with a motion addressed to the pleadings, the Court "may not consider matters outside of the pleadings without converting the motion into a motion for summary judgment," Marinoff v. City Coll. of New York, 63 Fed.Appx. 530, 531 (2d Cir. 2003), which this Court has not done. See also Glob. Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006) ("The purpose of Rule 12(b)(6) is to test, in a streamlined fashion, the formal sufficiency of the plaintiff's statement of a claim for relief without resolving a contest regarding its substantive merits. The Rule thus assesses the legal feasibility of the complaint, but does not weigh the evidence that might be offered to support it."); Friedl v. City of New York, 210 F.3d 79, 83 (2d Cir. 2000) (vacating decision dismissing § 1983 complaint because district court improperly relied on a party declaration). Consequently, I have disregarded Mr. Blough's affidavit.
In their reply brief, defendants argue again that the facts pleaded by plaintiff are insufficient, under Second Circuit precedent, to state a Fourteenth Amendment claim based on her familial right of association. See Def. Reply Mem. (Dkt. 38) at 1-4. They add that since the School is organized under the New York State Charter School Act, its governing Board of Trustees, not its principal, has final policymaking authority, and therefore that even if it were a proper defendant, it could not be liable to plaintiff under Monell for the conduct of its principal, Burke. See Id. at 6-7. Defendants also point out that plaintiff failed to respond to their supplemental jurisdiction argument. See Id. at 7.
II. ANALYSIS
A. Legal Standards
1. Rules 8(a)(2), 12(b)(6), and 12(c)
Fed. R. Civ. P. 8(a)(2) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." If that "short and plain statement" fails to present "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," the deficient claims may be dismissed pursuant to Fed.R.Civ.P. 12(b)(6). Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 65 (2d Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. If the plaintiff has not "nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).
When faced with a motion made pursuant to Rule 12(b)(6) or Rule 12(c), the court must "accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party." McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). However, those factual allegations "must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. "[A] pleading that offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.' Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (internal citations omitted) (quoting Twombly, 550 U.S. at 555, 557). The courts will not "unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678-79. Thus, while Rule 8(a) "does not require 'detailed factual allegations,'" it requires "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Geldzahler v. New York Med. Coll., 663 F.Supp.2d 379, 385 (S.D.N.Y. 2009).
A Rule 12(b)(6) motion to dismiss is made before the answer is filed, see Fed. R. Civ. P. 12(b), while a Rule 12(c) motion for judgment on the pleadings is made "[a]fter the pleadings are closed[.]" Fed.R.Civ.P. 12(c). Here, although defendants invoke Rule 12(c), see Pl. Opp. Mem. at 1, their motion is properly construed as a motion to dismiss made pursuant to Rule 12(b)(6), because it was filed in lieu of an answer to the Amended Complaint. This distinction does not affect the Court's substantive analysis, which is the same under either rule. See, e.g., Wells Fargo Bank, N.A. v. Wales LLC, 2016 WL 5719761, at *7 (S.D.N.Y. Sept. 30, 2016) ("In deciding a Rule 12(c) motion for judgment on the pleadings, courts apply the same standard applicable to a motion to dismiss under Rule 12(b)(6).").
2. Section 1983
Plaintiff's federal claim is brought pursuant to 42 U.S.C. § 1983, which permits civil suits against those who, acting "under color" of state law, have deprived a plaintiff of "any rights, privileges, or immunities secured by the Constitution" or laws of the United States. 42 U.S.C. § 1983. "Section 1983 does not create any federal rights; rather, it provides a mechanism to enforce rights established elsewhere." Soberanis v. City of New York, 244 F.Supp.3d 395, 400 (S.D.N.Y. 2017) (citing Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002)). To state a claim under § 1983, "a plaintiff must allege that (1) the defendant was a state actor, i.e., acting under color of state law, when he committed the violation and (2) the defendant deprived the plaintiff of 'rights, privileges or immunities secured by the Constitution or laws of the United States.'" Milan v. Wertheimer, 808 F.3d 961, 964 (2d Cir. 2015) (citation omitted).
B. The Amended Complaint Fails to State a Federal Claim
1. Plaintiff Fails Adequately to Plead State Action
Only "state actors" may be held liable for constitutional torts under § 1983. Milan, 808 F.3d at 964; see also Tancredi v. Metro. Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003) (§ 1983 plaintiffs must "show state action"). Thus, the court's "first inquiry" in a § 1983 case is "whether the actions alleged by the plaintiffs come within the definition of 'under color of' [state] law." Kia P. v. McIntyre, 235 F.3d 749, 755 (2d Cir. 2000) (quoting Carlos v. Santos, 123 F.3d 61, 65 (2d Cir. 1997)); see also Rendell-Baker v. Kohn, 457 U.S. 830, 838-44 (1982) (affirming dismissal of § 1983 suit brought by teachers who were discharged by publicly-funded alternative high school because the school was not a state actor); Dawkins v. Biondi Educ. Ctr., 164 F.Supp.3d 518, 524-31 (S.D.N.Y. 2016) (dismissing § 1983 claims arising out of plaintiff's discharge by a "public high school with private status," because defendants were not state actors).
Here, although defendants do not raise the issue, a review of the Amended Complaint reveals that plaintiff has failed to plead facts showing that the School and its principal, Burke, were acting "under color of state law" when terminating plaintiff's employment. Aside from her wholly conclusory allegation that the School is a "municipal entity," plaintiff alleges only that it "receives a substantial portion of its funding and oversight from the City of New York and the New York City Department of Education[.]" Am. Compl. ¶ 5. This is not nearly enough.
Although there is "no single test to identify state actions and state actors," Dawkins, 164 F.Supp.3d at 527 (quoting Cooper v. U.S. Postal Serv., 577 F.3d 479, 491 (2d Cir. 2009)), courts in our Circuit commonly conclude that an action is attributable to the state for the purposes of § 1983: "(1) when the entity acts pursuant to the coercive power of the state or is controlled by the state ('the compulsion test'); (2) when the state provides significant encouragement to the entity, the entity is a willful participant in joint activity with the state, or the entity's functions are entwined with state policies ('the joint action test' or 'close nexus test'); or (3) when the entity has been delegated a public function by the state ('the public function test').'" Id. (quoting Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008)). Importantly, under any of these tests, a defendant may be deemed a state actor when performing certain functions but not others. See, e.g., Kia P., 235 F.3d at 756 (hospital was "not a state actor" when rendering ordinary medical care to plaintiff's newborn daughter, but became a state actor when it held the child for non-medical reasons "as part of the reporting and enforcement machinery for [the] government agency charged with detection and prevention of child abuse and neglect").
In Dawkins, the plaintiff claimed that he was unlawfully fired, in violation of the First Amendment, by a "public high school with private status" that was "heavily regulated" and "almost entirely" funded by the state. 164 F.Supp.3d at 521. The court applied all three tests, but could not find that defendants were acting under color of state law in terminating plaintiff's employment. Dawkins failed the compulsion because he did not allege "that Defendants are regulated by the State in the school's personnel matters, including employment termination[.]" Id. at 526 (emphasis added); see also Rendell-Baker, 457 U.S. at 841 (although school was heavily regulated, it was not a state actor when it discharged petitioners because the discharge decisions "were not compelled or even influenced by any state regulation"). Dawkins failed the joint action test, because "the law is well-settled that the receipt of extensive governmental funding is insufficient to subject a private entity to liability under § 1983." Dawkins, 164 F.Supp.3d at 528 (collecting cases); see also Rendell-Baker, 457 U.S. at 840 (the fact that the school "depended on the state for funds" did not make it a state actor). Dawkins also failed the public function test, because "education is not considered to be exclusively the prerogative of the State." Dawkins, 164 F.Supp.3d at 529 (quoting Hamlin ex rel. Hamlin v. City of Peekskill Bd. of Educ., 377 F.Supp.2d 379, 386 (S.D.N.Y. 2005)). Because Hawkins "failed to plausibly plead that Defendants were acting under color of state law in terminating his employment," the court dismissed his § 1983 claim without reaching the constitutional issue. Id. at 530.
So too here. Indeed, according to plaintiff Blough, Burke himself had "final authority to fire employees," Pl. Opp. Mem. at 4, unfettered by the Department of Education or even by the School's Board of Trustees. Am. Compl. ¶ 6.
I recognize that Scaggs v. New York Dep't of Educ., 2007 WL 1456221, at *13 (E.D.N.Y. May 16, 2007), reached a different result, finding that plaintiffs adequately pleaded a § 1983 claim against the management company operating a New York charter school. In that case, however, the plaintiffs were students, and their claims concerned "the nature and quality of education received" at the schools. Id. The Scaggs court expressly distinguished that scenario from cases like this one, concerning "an employment action with regard to a single teacher, in which it may fairly be said that the state could be only minimally or tangentially involved[.]" Id. Here, as in Rendell-Baker, the plaintiff is "single teacher," who has alleged no facts showing that her discharge was "fairly attributable to the State." 457 U.S. at 838 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982)). Consequently, plaintiff has failed to state a claim for relief under § 1983.
The same was true in Patrick v. Success Acad. Charter Sch., Inc., 354 F.Supp.3d 185 (E.D.N.Y. 2018), where the plaintiff was a disabled student who, as a result of his "tantruming behavior," incurred multiple suspensions, causing him to repeat first grade. Citing Scaggs, Patrick held that the "Success Academy Defendants" operating the charter school that plaintiff attended were "state actors" for purposes of his § 1983 claim. Id. at 209 n.24.
Since plaintiff has failed adequately to plead state action by either Burke or the School, I do not reach defendants' argument that plaintiff failed to plead Monell liability against the School.
2. Plaintiff Fails to Allege Facts Sufficient to State a Fourteenth Amendment Violation
"The Fourteenth Amendment guarantees a substantive right under the Due Process Clause to intimate familial association." Lara-Grimaldi v. Cnty. of Putnam, 2019 WL 3499543, at *3 (S.D.N.Y. Aug. 1, 2019) (quoting Gorman v. Rensselaer County, 910 F.3d 40, 47 (2d Cir. 2018)). "The husband-wife relationship" has "been recognized as warranting protection." Maselli v. Tuckahoe Union Free Sch. Dist., 2018 WL 4637003, at *4 (S.D.N.Y. Sept. 27, 2018). However, in order to plead a Fourteenth Amendment claim for violation of the right to intimate familial association, a plaintiff must allege that the "state action was specifically intended to interfere with the family relationship," as "only deliberate conduct implicates due process." Lara-Grimaldi, 2019 WL 3499543, at *3 (quoting Gorman, 910 F.3d at 47) (additional emphasis added); see also Garten v. Hochman, 2010 WL 2465479, at *5 (S.D.N.Y. June 16, 2010) (Gardephe, J.) (dismissing intimate familial association claim where, among other things, plaintiff failed to plead facts showing that defendant's decision to assign plaintiff's children to a different elementary school was "motivated by a desire to interfere with his relationship with his children"). Moreover, the defendant's conduct must have been "so shocking, arbitrary, and egregious that the Due Process Clause would not countenance it even were it accompanied by full procedural protection." Lara-Grimaldi, 2019 WL 3499543, at *3 (quoting Gorman, 910 F.3d at 47).
Beyond this, many courts have held that "an intimate association right is not violated unless the challenged action has the likely effect of ending the protected relationship." Adler v. Pataki, 185 F.3d 35, 43-44 (2d Cir. 1999); see also Garten, 2010 WL 2465479, at *5 (complaint was insufficient because "Garten has not alleged - nor could he - that the decision to move [his children] from one school to another had 'the likely effect of ending' his relationship with his children") (quoting Adler, 185 F.3d at 43); Harris-Thomson v. Riverhead Charter Sch. Bd. of Trustees, 2016 WL 11272084, at *14 (E.D.N.Y. Feb. 23, 2016) (recommending dismissal of Fourteenth Amendment claim where plaintiff claimed that the Board of Trustees failed to reappoint her as a trustee in retaliation for removing her son from the school but failed to allege that defendants' actions "either had the 'the likely effect of ending' her relationship with her son or, at the very least, constituted an undue intrusion on her ability to make educational decisions for her son"), report and recommendation adopted, 2016 WL 4617207 (E.D.N.Y. Sept. 6, 2016). Conduct that merely stresses the family relationship cannot be the basis for a constitutional claim. Lyng v. Int'l Union, United Auto., Aerospace & Agr. Implement Workers of Am., UAW, 485 U.S. 360, 365-66 (1988) (statute denying food stamps to the "household" of a striking worker did not infringe plaintiffs' associational rights because it "does not order any individuals not to dine together nor does it in any other way directly and substantially interfere with family living arrangements") (internal quotation marks omitted); Garten, 2010 WL 2465479, at *5 (allegations that defendant's conduct placed "severe strain" on parent's relationship with his children were insufficient).
In Lara-Grimaldi, plaintiff complained that by stationing correction officers in her daughter's hospital room - following a suicide attempt by the daughter while incarcerated - the county sheriff violated her Fourteenth Amendment right to familial association with her daughter. 2019 WL 3499543, at *1, 3. The court dismissed the claim because plaintiff "has not alleged facts plausibly suggesting that Moving Defendants 'specifically intended to interfere with the family relationship.'" Id. at *4 (quoting Gorman, 910 F.3d at 48.).
In Garten, where the plaintiff alleged that the defendant school superintendent burdened his relationship with his children by assigning them to a different school (contrary to plaintiff's parenting agreement with his ex-wife), this Court agreed that "constitutional protections for associational interests are at their apogee when close family relationships are at issue," 2010 WL 2465479, at *5 (citing Patel v. Searles, 305 F.3d 130, 137 (2d Cir. 2002)), but found the claim insufficient because, among other things, plaintiff failed to provide any factual support for his "conclusory assertion that the transfer was intended to . . . interfere in his relationship with his children." Id. (emphasis added). Moreover, the Court explained, Garten's allegations that the children blamed their father for the transfer, and resented his failure to prevent it, did not rise to the level necessary to sustain a constitutional claim. "While this may have 'severely strained' the relationship between Garten and his children (Compl. ¶ 14), severe strain is a far cry from ending the relationship between parent and child." Id.
In Rajaravivarma v. Bd. of Trustees for Conn. State Univ. Sys., 862 F.Supp.2d 127 (D. Conn. 2012), plaintiff alleged that he was denied tenure at a state university in retaliation for a lawsuit his wife had filed against the state. He further alleged that as a result of his job loss he was obliged to take a teaching "job in a distant city" and place his daughter in boarding school. Id. at 169. On summary judgment, the court dismissed plaintiff's § 1983 claim based on his right to intimate association with his wife, explaining that defendants' tenure decision did not have "the likely effect of ending his marriage" or constitute "an arbitrary or undue intrusion into Plaintiff's marriage," and noting that plaintiff did not show "how placing his daughter in boarding school affected his marriage with his wife." Id.
In this case, the Amended Complaint fails to satisfy any articulated standard for pleading a plausible violation of the Fourteenth Amendment right to intimate familial association. First, plaintiff nowhere alleges any facts supporting her conclusory allegation that Burke's conduct "was intended to and did in fact intrude upon and interfere with her relationship." Am Compl. ¶ 22. To be sure, she alleges that Burke discharged her because of her relationship with Mr. Blough, see id. ¶¶ 15, 20, 24, but that is not the same thing as discharging her in order to harm her relationship with Mr. Blough. Only the latter is actionable under the Fourteenth Amendment. See Gorman, 910 F.3d at 48; Lara-Grimaldi, 2019 WL 3499543, at *3; Garten, 2010 WL 2465479, at *5.
"[A] spouse's claim that adverse action was taken solely against that spouse in retaliation for conduct of the other spouse should be analyzed as a claimed violation of a First Amendment right of intimate association," not the Fourteenth Amendment right which is at issue here. Adler, 185 F.3d at 44. Here, plaintiff voluntarily dismissed her constitutional claim insofar as it was pleaded under the First Amendment.
Second, plaintiff provides no facts supporting her conclusory allegation that defendants' conduct in terminating her employment "interfere[d] with her relationship" with her husband, Am Compl. ¶ 22, much less that the interference was "undue" or had the "likely effect" of ending that relationship. She does not allege that the marriage itself was ever threatened, or even that her emotional relationship with her husband deteriorated. Instead, plaintiff asserts that as a "byproduct" of her termination, Am. Compl. ¶ 23, there was some strain on the household budget, which required both spouses to adjust their roles and caused them to postpone a contemplated adoption. Id. ¶¶ 22-23. This type of strain, which is common when a working spouse loses his or her job, is insufficient to state a constitutional claim based on the right to intimate familial association. See Rajaravivarma, 862 F.Supp.2d at 169; Garten, 2010 WL 2465479, at *5. Indeed, the only case that plaintiff cites in the section of her brief discussing this point, see Pl. Opp. Mem. at 4-5, is Garten, in which this Court held that it was insufficient for a father to allege that defendants' conduct caused his children to "blame" and "resent" him, which "severely strained" the parent-child relationship. 2010 WL 2465479, at *5.
Further amendment would be futile, as plaintiff has already amended once - to meet the same arguments raised in the present motion - and admits that she "cannot plead that [defendants' conduct] has led to the end of her marriage." Pl. Opp. Mem. at 5. Instead, she asks the Court to not "set such a high [bar] and formalistic analysis of these claims[.]" Id. The bar set by courts in this Circuit, however, is neither too high nor overly formalistic. To the contrary: the low bar that plaintiff asks the Court to apply would open the floodgates to Fourteenth Amendment claims for every adverse employment decision that, as a "byproduct," required a married couple (or other family unit) to make difficult choices regarding their finances or adjust their childcare arrangements. Here, as in Lara-Grimaldi, Harris-Thomson, Rajaravivarma, and Garten, plaintiff has failed to state any claim upon which relief could be granted for violation of her right to intimate association with her spouse. Consequently, her § 1983 claim should be dismissed.
C. The Court Should Decline to Exercise Supplemental Jurisdiction over Plaintiff's New York City Administrative Code Claim
Plaintiff invokes this Court's federal question jurisdiction, pursuant to 28 U.S.C. § 1331, for her § 1983 claim, and its supplemental jurisdiction, pursuant to 28 U.S.C. § 1367, for her claim under an unspecified provision of the New York City Administrative Code. Courts in this District "routinely" decline to exercise supplemental jurisdiction over local law claims after dismissing all federal claims at the pleading stage. Espinoza v. New York City Dep't of Transportation, 304 F.Supp.3d 374, 391 (S.D.N.Y. 2018) (collecting cases). There is no reason to depart from that practice here. Indeed, by failing to counter defendants' argument on this point, plaintiff may be deemed to have abandoned her local law claim, furnishing an independent reason to dismiss it. See Lipton v. Cnty. of Orange, NY, 315 F.Supp.2d 434, 446 (S.D.N.Y. 2004) ("This Court may, and generally will, deem a claim abandoned when a plaintiff fails to respond to a defendant's arguments that the claim should be dismissed.").
III. CONCLUSION
For the reasons set forth above, I recommend, respectfully, that defendants' motion to dismiss be GRANTED; that plaintiffs claim brought under 42 U.S.C. § 1983 for violation of her Fourteenth Amendment right of intimate association be DISMISSED WITH PREJUDICE for failure to state a claim upon which relief can be granted; and that her local law claim be DISMISSED WITHOUT PREJUDICE for lack of subject matter jurisdiction.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed. R. Civ. P. 6(a) and (d). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Paul G. Gardephe at 40 Foley Square, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Gardephe. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 F. App'x, 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).