Opinion
20-CV-2424 (VEC) (OTW)
09-01-2022
MARY HURD BROWN, Plaintiff v. NEW YORK CITY DEPARTMENT OF EDUCATION, Defendant.
VALERIE E. CAPRONI, UNITED STATES DISTRICT JUDGE
REPORT & RECOMMENDATION
ONA T. WANG UNITED STATES MAGISTRATE JUDGE
Defendant New York City Department of Education (“NYC DOE”) moves to dismiss (ECF 40, 41) Plaintiff's second amended complaint (ECF 34, hereinafter known as “SAC”). Plaintiff alleges age discrimination under the Age Discrimination in Employment Act of 1967, 29 U.S.C.A. §§ 621-34, (“ADEA”); disability discrimination under the Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701-96 (“RA”) and the Americans with Disability Act of 1990, 42 U.S.C. §§ 12101-213 (“ADA”); hostile work environment under the ADEA, ADA, and RA; and, retaliation claims under the ADEA, ADA, and RA. Plaintiff states analogous claims under New York State Human Rights Law, N.Y. Exec. Law. §§ 290-97 (“NYSHRL”), and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101-34 (“NYCHRL”). For the reasons stated below, I recommend that Defendant's Motion to Dismiss be GRANTED in part and DENIED in part. Specifically, I recommend that all claims except for Plaintiff's disability discrimination failure to accommodate claim under the ADA and RA be dismissed.
I. Background and Procedural History
The Court assumes familiarity with the factual background in this case as set forth in its previous Report & Recommendation (“R&R”). See Brown v. New York City Dep't of Educ., 20-CV-2424 (VEC) (OTW), 2021 WL 4943490 (S.D.N.Y. Aug. 31, 2021) R&R adopted (see Brown v. New York City Dep't of Educ., 20-CV-2424 (VEC), 2021 WL 4296379 (S.D.N.Y. Sept. 20, 2021)). Upon previously recommending that the motion to dismiss be granted with leave to amend, I recommended that the Plaintiff's amended complaint should allege the following (ECF 29 at 27):
1. “How Plaintiff is qualified for her position after 2013, either with or without a reasonable accommodation;
2. The circumstances of Plaintiff's communications with her employer informing them of her disability;
3. The accommodation(s) Plaintiff requested and received, if any, during her tenure at NYC DOE;
4. The circumstances of retaliatory acts, if any, by Mr. Friedman, Principal Gabbard, or anyone else;
5. The specifics of any comparators who Plaintiff alleges were treated favorably, to the extent Plaintiff seeks to allege disparate treatment by comparison.”
On November 2, 2021, Plaintiff filed her second amended complaint. (SAC). Plaintiff realleges federal and state age discrimination and disability discrimination based on the same set of facts alleged in the First Amended Complaint. (SAC). The parties then pursued mediation through the SDNY Mediation Program but were unable to reach a settlement. (ECF 46). Defendant filed a Motion to Dismiss and supporting memorandum on January 19, 2022. (ECF 39-43). Plaintiff opposed the Motion to Dismiss on March 28, 2022. (ECF 47). Defendant filed a sur-reply on May 11, 2022. (ECF 51). Plaintiff filed yet another opposition, this time seeking summary judgment on June 6, 2022. (ECF 55). Defendant filed a sur-sur-reply in further support of its motion to dismiss on June 27, 2022. (ECF 58).
II. Additional Facts Provided in Plaintiff's Second Amended Complaint
The Court broadly interprets Plaintiff's second amended complaint as alleging the following causes of action. Plaintiff alleges age discrimination under the Age Discrimination in Employment Act of 1967, 29 U.S.C.A. §§ 621-34, (“ADEA”); disability discrimination under the Rehabilitation Act of 1973, 29 U.S.C.A. §§ 701-96 (“RA”) and the Americans with Disability Act of 1990, 42 U.S.C. §§ 12101-213 (“ADA”); hostile work environment under the ADEA, RA, and ADA; and, retaliation claims under the ADEA, the RA, and the ADA. Plaintiff also states analogous claims under the New York State Human Rights Law, N.Y. Exec. Law. §§ 290-97 (“NYSHRL”), and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101-34 (“NYCHRL”).
In her second amended complaint and subsequent filings, Plaintiff added information regarding her disability accommodations, her allegedly hostile work environment, and her protected activities. Plaintiff alleged additional facts that occurred prior to May 23, 2018, but such events are time barred. See New York City Dep't of Educ., 2021 WL 4943490 at *6. See infra Part III.B.
A. Plaintiff's Disability Accommodations
As a result of injuries to her knee sustained on the job in in March of 1993, Plaintiff alleges that she became eligible for physical accommodations at work. (SAC ¶ 4). Specifically, Plaintiff was granted three accommodations: earlier work hours, a workstation on the first or second floor to minimize her use of stairs, and authorization to use her personal car to perform home visits. (SAC ¶ 4). These accommodations were deemed reasonable by the NYC DOE and were approved for her return to work in April or May of 1993. (SAC ¶ 4). In 2013, Plaintiff again fell and reinjured her knee, necessitating a bi-lateral knee replacement. (SAC ¶ 5).
C.f. Plaintiff at other times states that car usage requests are “automatically approved for all Attendance Teachers.” (SAC ¶ 8). However, the Court interprets Plaintiff's car usage request as an accommodation.
In the 2018-2019 school year, Plaintiff's early working hours accommodation and workspace accommodations were revoked with no explanation. (SAC ¶ 40). Plaintiff's prior early work hours were changed from 8:20-2:50 to 8:30-3:50. (SAC ¶ 40). Her accommodation of having a first or second floor working space was revoked and, instead, she had to report to Principal Gabbard's school where he was located on the fourth floor. (SAC ¶ 40). Plaintiff told Mr. Friedman that she was not able to walk up and down stairs, but Mr. Friedman said, “that's where Mr. Gabbard is, so that's where you have to be.” (SAC ¶ 40). Plaintiff further alleges that Principal Gabbard would intentionally hold meetings on floors that were accessible only by stairs in violation of Plaintiff's accommodations. (ECF 47 ¶ 100). Plaintiff was required to attend weekly attendance meetings on either the fourth, fifth, or seventh floor. (ECF 25 at 4). In 2018 to 2019, Principal Gabbard mandated that all “staff sign [an] attestation section on [their] time sheet,” and specifically that it be signed by the staff of the school individuals were attending instead of a general contact person. (ECF 25 at 4). Plaintiff struggled to locate the principal within the school she was attending at to sign off that Plaintiff was present. (ECF 25 at 4). The new mandate required Plaintiff to “walk more” than before since “she had not been required to do so for fifteen years prior.” (ECF 25 at 4). Plaintiff ultimately submitted a new medical accommodation form as requested by Mr. Friedman and had her accommodations reinstated by Ms. Walton-Small, NYC DOE Office of Equal Opportunity Disability Lawyer in September or October of 2019. (SAC ¶ 50-1).
Plaintiff did not receive Travel and Reimbursement Approval Certification (TRAC) reimbursements from September 2018 to February 2019. (SAC ¶ 23; ECF 47 at 26). NYC DOE Central Office's TRAC system requires car usage authorization first before travel reimbursement. (ECF 47 ¶ 51). Without TRAC authorization, Plaintiff alleges she was forced to rely on public transportation to get to and from the various schools she services as well as students' homes. (SAC ¶ 44). Without the ability to use her car, Plaintiff needed additional time to complete her home visits, resulting in overtime for Plaintiff, who had to travel by MTA bus and Access-a-Ride. (ECF 47 ¶ 68). Further, Plaintiff states Principal Gabbard's failure to accommodate her schedule resulted in longer days since she was forced to rely on Access-a-Ride transportation arrangements. (ECF 47 ¶ 136).
According to a NYC DOE Division of Financial Operations handbook on TRAC, TRAC is required to “initiate transportation, overnight lodging and meal reimbursement requests after engaging in a qualifying activity on behalf of the NYC DOE.” (ECF 47 at 26). TRAC is also utilized if an employee intends to use their personal vehicle for official NYC DOE business; this is allowed only where alternate means of transportation are not practical and should not be used due to preference. (ECF 47 at 27).
Plaintiff alleges facts about her qualifications for her job. She has engaged in training, continual professional developments, attendance of workshops for teacher skill development and enrichment, and has long-term experience performing the job. (SAC ¶ 30). Plaintiff highlighted her qualifications as an attendance teacher, citing her Bachelor of Science degree and Master's in the field of technology, education, and psychology, as well as experience working with outside agencies such as ACS, PD, and CBO, as well as students and parents. (SAC ¶ 31).
Plaintiff does not specify which agencies the acronyms stand for, but is likely referring to the Administration for Children's Services (ACS) and Community Based Organizations (CBOs). Plaintiff states that in addition to her degrees she took a certificate course at Columbia International School for cultural knowledge, as well as a course at Cornell University for Labor Relations and Women's Studies to aid with interpersonal relationships and diverse communities as an attendance teacher. (SAC ¶ 35).
B. Plaintiff's Work Environment
Plaintiff alleges that she suffered “multiple incidents” in which Mr. Friedman “verbally assaulted and publicly humiliated her,” (SAC ¶ 9), and experienced “continual verbal harassment” by Mr. Friedman and those “closely associated with him.” (SAC ¶ 19). Plaintiff describes the “assault at the school level” from Mr. Friedman and others closely associated with him as “perpetual and disruptive.” (SAC ¶ 19).
Plaintiff alleges that once Principal Gabbard became her ratings officer, he immediately removed days from her sick bank and funds. (SAC ¶¶ 54, 55). Plaintiff alleges Principal Gabbard referred to Plaintiff's “extended years of service” in a derogatory way. (ECF 25 at 5). Principal Gabbard required additional tasks and mandates of Plaintiff, such as requiring her to report to his school each morning, a practice Plaintiff states is prohibited under the School Allocation Memorandum (“SAM”). (SAC ¶¶ 2, 28). Principal Gabbard provided Plaintiff with a timesheet “that he had designed specifically for [Plaintiff]” with instructions to account for every minute of her day if she wished to be paid on September 28, 2018. (SAC ¶ 35). In one incident, Principal Gabbard accused Plaintiff lying and that she had “gotten all [her] colleagues to lie for [her] as well”. (SAC ¶ 29). This occurred after Plaintiff went with a colleague to a school, which she was unauthorized to visit, to use their ATS system-a practice Plaintiff states is common among Attendance Teachers. (SAC ¶ 29). Once again, this resulted in Plaintiff receiving a disciplinary letter placed in her file and a pay deduction for September 7, 2018. (SAC ¶ 29). For most of September 2018, Plaintiff alleges that Principal Gabbard would yell at Plaintiff whenever he saw her in school after 9:30 am. (SAC ¶ 30). Plaintiff alleges that Principal Gabbard told her that he knew she had two unsatisfactory ratings and that he would “be happy to” give her another. (SAC ¶ 27).
Plaintiff alleges that no other attendance teachers were issued specially-designed time sheets. (SAC ¶ 35). Rather, they filled out monthly, pre-dated time sheets. (SAC ¶ 35).
During a project Plaintiff conducted under the supervision of Ms. Kim Suttell, Attendance Director, Plaintiff “found evidence that Principal Gabbard had 17 students out of the sample 37 total that were never assigned to me . . . [t]hat evidence showed that Principal Gabbard was manipulating his register for monetary budget gains which is fraud.” (SAC ¶ 56) (internal quotations omitted). Plaintiff states that Principal Gabbard was enraged when Mr. Friedman notified him of Plaintiff's alleged findings, and in February 2019 told Plaintiff, “I have something better than a “u” rating for you.” (SAC ¶ 56). In connection with Mr. Friedman's and Principal Gabbard's harassment, Plaintiff was given or was threatened with multiple unsatisfactory ratings. (SAC ¶¶ 11, 29, 37).
Plaintiff later alleges that she did not initially understand the meaning of what could be “better” than a “u” rating. (SAC ¶¶ 56, 59). She subsequently realized that Principal Gabbard was referring to a 3020A which is “even more devastating, harassing [and] . . . embarrassing.” (SAC ¶ 59).
Plaintiff did allege two reasons for Mr. Friedman and Principal Gabbard's ongoing mistreatment that were entirely separate from Plaintiff's protected classes: the first being her “parent supportive” attitude and her reporting on negative parent feedback, and the second being her work on a “special project.” (SAC ¶¶ 15, 56).
C. Plaintiff's Protected Activity
Plaintiff claims her investigations and duties as an attendance teacher are “protected” activities. Plaintiff alleges that her investigations under “DOE Chancellor's Regulations, DOE School Allocation Memorandum (SAM), and UFT Attendance Teachers' Contact” are “a protected workplace activity” of a “centrally funded Attendance Teacher”. (ECF 47 ¶ 8). Plaintiff explains she “did not [previously] use the specific words protected workplace activities” because Plaintiff believed the Court already knew that “Attendance Teachers are charged with investigations . . . and to substantiate attendance records.” (ECF 47 ¶ 10). Plaintiff further labels instances of obstruction of her work as protected activity, namely Principal Gabbard's denial of access to computers or a proper workspace, Principal Gabbard's non-approval of personal car usage (ECF 47 ¶ 56, 98), and when Principal Gabbard yelled at her for not leaving for her home visits (ECF 47 ¶ 97).
D. Plaintiff Fails to Allege Comparators
Plaintiff fails to allege the specifics of any comparators who Plaintiff alleges were treated favorably. Although Plaintiff named five other individuals, she does not state that they are similarly situated with any discerning detail. (SAC ¶ 23, 26).
Plaintiff's bare description of the other individuals contradicts itself. She refers to the other individuals as simultaneously “senior and older” (ECF ¶ 26) and “younger and nondisabled” (ECF ¶ 23).
III. Analysis
A. Standard of Review for a Motion to Dismiss
In reviewing a motion to dismiss pursuant to Rule 12(b)(6), a court must accept the factual allegations set forth in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See, e.g., Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). To survive such a motion, a plaintiff must plead enough facts “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). More specifically, the plaintiff must allege enough facts to show “more than a sheer possibility that a defendant has acted unlawfully.” Id.
As relevant here, a court is “obligated to afford a special solicitude to pro se litigants.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir. 2010). Therefore, this Court must interpret Plaintiff's submissions “to raise the strongest arguments that they suggest.” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam). Nevertheless, a pro se plaintiff must still plead sufficient facts to state a claim to survive a motion to dismiss. See Chukwueze v. NYCERS, 891 F.Supp.2d 443, 450 (S.D.N.Y. 2012).
B. Plaintiff's Cannot Reassert All State Law Claims under the NYCHRL and NYSHRL and Time Barred ADA and ADEA Claims Previously Dismissed with Prejudice
This Court previously dismissed with prejudice all of Plaintiff's state law claims and all ADA and ADEA claims arising from discrete discriminatory or retaliatory acts that occurred prior to May 23, 2018. See New York City Dep't of Educ., 2021 WL 4943490 at *6. Accordingly, Plaintiff's previously dismissed with prejudice claims now reasserted should be dismissed again under the “law of the case” doctrine. DiLaura v. Power Auth., 982 F.2d 73, 76 (2d Cir. 1992) (“when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case”).
C. Failure to Accommodate as Disability Discrimination Under the ADA and RA
The ADA “require[s] an employer to afford reasonable accommodation of an employee's known disability unless the accommodation would impose an undue hardship on the employer.” 42 U.S.C. § 12112(b)(5)(A). Noll v. Int'l Bus. Machs. Corp., 787 F.3d 89, 94 (2d Cir. 2015). To maintain a claim under the ADA, “an employee must show that: “(1) [s]he is a person with a disability under the meaning of the [statute]; (2) an employer covered by the statute had notice of [her] disability; (3) with reasonable accommodation, the employee could perform the essential functions of the job at issue; and (4) the employer has refused to make such accommodations.” Id. (internal quotations omitted). A claim of disability discrimination for failure to accommodate under the ADA is governed by the same legal standards as a claim under the RA. 29 U.S.C. § 794(a)-(d); Costabile v. New York City Health & Hosps. Corp., 951 F.3d 77, 81 (2d Cir. 2020) (using the same standard for a RA claim).
The McDonnell Douglas burden shifting test under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), is not required of Plaintiff on a failure to accommodate claim. Nazario v. Promed Pers. Servs. NY Inc., 15-CV-6989 (LGS), 2017 WL 2664202, at *5 n.1 (S.D.N.Y. June 19, 2017) (“applying the McDonnell Douglas test to a failure to accommodate claim is not helpful and could introduce unwarranted intent requirements into the analysis”). Cf. McMillan v. City of New York, 711 F.3d 120, 129 (2d Cir. 2013) (finding that McDonnell Douglas analysis need not be used when it is not helpful).
Plaintiff successfully alleges a prima facie claim that defendants have failed to accommodate her disability by refusing to allow her to use her personal car to make home visits. As already determined, Plaintiff adequately pleads that she is a person with a disability within the meaning of the ADA. Brown, 2021 WL 4943490 at *10. Further, Plaintiff has shown that Defendant had notice of Plaintiff's disability. Whether an employer has adequate notice of an employee's claimed disability does not turn on how the notice was given, to whom the notice was given, or whether the notice was accompanied by medical support. Campbell v. Ipsoft Inc., 18-CV-10684 (DF), 2021 WL 4248861, at *24 (S.D.N.Y. Sept. 17, 2021). Adequate notice does turn on if “the employee or a representative for the employee provides the employer with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for an accommodation.” Kurlender v. Ironside Grp., Inc., 18-CV-3839 (JFB) (AYS), 2019 WL 1317405, at *3 (E.D.N.Y. Mar. 22, 2019) (citation omitted)). Here, Plaintiff adequately alleges that as of 1993, she was granted accommodations because of her knee disability; accordingly, the NYC DOE must have been on notice that Plaintiff had a disability. See Campbell, 2021 WL 4248861 at *25 (finding that the fact of a disability accommodation “itself permits the inference that Defendant was on notice that Plaintiff had a disability”) (emphasis in original).
Plaintiff adequately alleges that she is qualified for her position, both with and without her disability. Plaintiff states that she is more than qualified for her job as an attendance teacher, citing her Bachelor of Science degree and Master's degree in the field of technology, education and psychology, as well as experience working with outside agencies such as ACS, PD, and CBO as well as students and parents. (SAC ¶ 31).
Finally, Plaintiff adequately alleges that the employer has failed to provide her with the accommodation to use her personal car. She alleges explicitly that she did not receive TRAC reimbursement for September 2018 to February 2019. (SAC ¶ 23). In contrast, Plaintiff's early hours accommodation and workspace accommodations were ultimately approved following a resubmission of her accommodation request in either September or October of 2019. (SAC ¶ 51). Thus, she cannot maintain a prima facie case for the failure to provide a reasonable accommodation for her early hours and workspace accommodations. See Lewis v. Erie County Medical Center Corp., 907 F.Supp.2d 336, 352 (W.D.N.Y. November 1, 2012) (where plaintiff's requested accommodations were granted, plaintiff failed to state a claim for failure to accommodate); Givens v. Monroe Cnty., 11-CV-6592, 2014 WL 4794641, at *3 (W.D.N.Y. Sept. 25, 2014); Nieblas-Love v. New York City Hous. Auth., 165 F.Supp.3d 51, 73 (S.D.N.Y. 2016) (where plaintiff had admitted that he was accommodated for his alleged disability plaintiff failed to state a claim for failure to accommodate).
Accordingly, I recommend that the Court DENY Defendant's Motion to Dismiss Plaintiff's disability discrimination failure to accommodate claim only for her accommodation to use her personal car.
D. Remaining Age and Disability Discrimination Claims Under the ADEA, ADA, and RA
The pleading standards to establish a prima facie case of discrimination under the ADEA, ADA, and RA are similar. To establish a prima facie case of age discrimination under the ADEA, the Plaintiff must allege that: (1) she was within the protected age group; (2) she was qualified for the position; (3) she experienced an adverse employment action; and, (4) such action occurred under circumstances giving rise to an inference of discrimination. Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010). To state a prima facie claim for disability discrimination under the ADA, the plaintiff must allege that (1) the defendant-employer is subject to the ADA; (2) the plaintiff was disabled within the meaning of the ADA; (3) she was qualified to perform the essential functions of her job, with or without a reasonable accommodation; and, (4) she suffered an adverse employment action because of her disability. Amador v. Macy's E.-Herald Square, 12-CV-4884 (MHD), 2014 WL 5059799, at *9 (S.D.N.Y. Oct. 3, 2014). The causation standard for a claim under the RA is the same as the standard for a claim under the ADA. Natofsky v. City of New York, 921 F.3d 337, 345 (2d Cir. 2019), cert. denied, 206 L.Ed.2d 822 (Apr. 20, 2020). Additionally, where two bases of discrimination exist, the two grounds cannot be neatly reduced to distinct components. Gorzynski, 596 F.3d at 10910 (2d Cir. 2010).
Plaintiff realleges seven adverse employment actions taken because of Defendant's age and/or disability: (1) the “revocation” of Plaintiff's car privileges, or alternatively, refusal to reimburse for car usage (SAC ¶¶ 7, 8, 10, 43; ECF 25 at 2); (2) a hostile work environment (SAC ¶¶ 9, 29, 37); (3) reassignment to a school with additional travel time (SAC ¶ 28, 40, 42); (4) additional restrictions and obligations (SAC ¶ 12, 21, 28); (5) reassignment from her duties (SAC ¶ 59); (6) being served with Section 3020-a disciplinary charges seeking termination of her employment, on February 1, 2019 (SAC ¶ 59); and, (7) required additional walking to attend meetings and sign forms (SAC ¶¶ 41-2). See generally Brown, 2021 WL 4943490 at *7. Additionally, Plaintiff now alleges an eighth in her second amended complaint: (8) retaliation for protected activity. (SAC ¶¶ 13, 15, 22, 50).
Plaintiff fails to allege the required causation elements under the ADEA, ADA, and RA for her re-alleged seven adverse employment actions. Even with the addition of a second amended complaint, Plaintiff fails to provide facts about her comparators in order to draw an inference to make plausible the conclusion that but for her age and/or disability she would not have suffered the challenged action. Furthermore, for her eighth allegation, retaliation for protected activity, Plaintiff's activity does not actually constitute protected activity under the ADEA, ADA, and RA. See supra Part III.F. Plaintiff does not allege any other new facts in her second amended complaint that adequately show an inference of discrimination, or that she suffered an adverse employment action because of her disability. Without new, sufficient, allegations, Plaintiff's allegedly adverse employment actions again fail to constitute an employment discrimination claim. See Brown, 2021 WL 4943490 at *7-10.
Accordingly, I recommend that the Court GRANT Defendant's Motion to Dismiss Plaintiff's claims for age and disability discrimination under the ADA, ADEA, and RA.
E. Hostile Work environment under the ADEA, ADA, and RA
The standards for hostile work environment under the ADEA, ADA, and RA, are similar. To establish a claim for a hostile work environment under the ADEA, a plaintiff must allege facts that the complained of conduct: “(1) is objectively severe or pervasive-that is [it] . . . creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff's [protected characteristic].'” Forgione v. City of New York, 2012 WL 4049832, at *7 (E.D.N.Y. Sept. 13, 2012) (quoting Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (alterations in original)). For a hostile work environment claim under the ADA, the Plaintiff must show “(1) that the harassment was ‘sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment,' and (2) that a specific basis exists for imputing the objectionable conduct to the employer.” Fox v. Costco Wholesale Corp., 918 F.3d 65, 74 (2d Cir. 2019). The elements of a hostile work environment claim are the same under the ADA and RA. Knope v. Garland, No. 20-3274-CV, 2021 WL 5183536, at *4 (2d Cir. Nov. 9, 2021).
A workplace is hostile “[when] [it] is permeated with discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim's employment.” Forgione v. City of New York, 2012 WL 4049832, at *7 (E.D.N.Y. Sept. 13, 2012) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). Minor acts or occasional episodes do not rise to the level of a hostile work environment. Id. An inquiry into whether a work environment is hostile requires evaluating “the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with a plaintiff's job performance.” Harewood v. New York City Dep't of Educ., 18-CV-05487 (KPF) (KHP), 2019 WL 3042486, at *4 (S.D.N.Y. May 8, 2019). Courts in this Circuit have consistently held that “[a]llegations of even constant reprimands and work criticism by themselves are not sufficient to establish a hostile environment claim.” Lucenti v. Potter, 432 F.Supp.2d 347, 362 (S.D.N.Y. 2006); St. Louis v. N.Y.C. Health & Hosp. Corp., 682 F.Supp.2d 216, 234 (E.D.N.Y. 2010) (same, concerning “negative job evaluations and disciplinary warnings”).
Plaintiff's allegations are not sufficiently severe or pervasive enough. Plaintiff only identifies two incidents in which a supervisor made negative references to her protected status of age. See SAC ¶ 9; ECF 25 at 5. Other incidents of conflict between Plaintiff and her superiors are sporadic, spontaneous, outbursts of aggression and bickering. Her negative evaluations are insufficient to show a hostile work environment. Thus, the circumstances that Plaintiff alleges as a whole are not severe enough for her to adequately plead a hostile work environment.
Accordingly, I recommend that the Motion to Dismiss Plaintiff's claim for hostile work environment under the ADEA, ADA, and RA be GRANTED.
F. Retaliation For Protected Activity under the ADEA, ADA, and RA
The standards for retaliation under the ADEA, ADA, and RA, are similar. To state a claim for retaliation under the ADEA, a plaintiff must allege that “(1) the plaintiff was engaged in an activity protected under the [statute]; (2) the employer was aware of the plaintiff's participation in the protected activity; (3) the plaintiff was subject to an adverse employment action; and (4) there is a nexus between the protected activity and the adverse action taken.” Wanamaker v. Columbian Rope Co., 108 F.3d 462, 465 (2d Cir. 1997). The standards under the ADA and RA are governed by the same standard as the ADEA.
Retaliation claims under the ADA, RA, and the NYHRL are governed by the same standards. Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). The NYHRL is governed by the same standards as the ADEA. Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 25 n.8 (2d Cir. 2014) (finding retaliation claims under NYSHRL are generally the same as claims under Title VII). Thus, the ADEA, ADA, and RA share the same standards.
A plaintiff engages in protected activity when she “(1) opposes employment practices prohibited under Title VII; (2) makes a charge of discrimination; or (3) participates in an investigation, proceeding or hearing arising under Title VII.” Bundschuh v. Inn on the Lake Hudson Hotels, LLC, 914 F.Supp.2d 395, 405 (W.D.N.Y.2012). To qualify as protected activity, an employee's complaint must have been based on “a good faith, reasonable belief that [she] was opposing an employment practice made unlawful by Title VII.” Kelly v. Howard I. Shapiro & Assocs. Consulting Eng'rs, P.C., 716 F.3d 10, 14 (2d Cir.2013) (quotation omitted). “[M]ere subjective good faith belief is insufficient[;] the belief must be reasonable and characterized by objective good faith.” Id. at 16 (quotation omitted and emphasis removed).
All incidents which Plaintiff labels as “protected activity” fail to actually qualify as protected activities. None of these activities alleged by Plaintiff could be conceived as reasonable and objectively in good faith that Plaintiff was opposing an employment practice actually “made unlawful” by the applicable statutes. Plaintiff seems to misconstrue a workplace activity that may be considered an expected duty of an attendance teacher in her role with a “protected activity” within the meaning of a retaliation claim under the ADEA, ADA, and RA. Plaintiff's ability to perform her job at work is not the protected activity. Rather, Plaintiff is protected against distinctly prohibited discriminatory practices or retaliation from certain activities (investigations, proceedings, and hearings) actually arising under law. It does not cover all investigations of any nature, nor any activity that occurs within the workplace.
Plaintiff's complaint with the DOE Office of Equal Opportunity is time barred since it occurred in September of 2017. See supra Part III.B. (SAC ¶ 13).
Accordingly, I recommend the motion to dismiss Plaintiff's retaliation claims under the ADA, ADEA, and RA be GRANTED.
IV. Conclusion and Objections
For the reasons stated above, I recommend that the Defendant's Motion to Dismiss be GRANTED in part and DENIED in part. All claims, except for Plaintiff's disability discrimination failure to accommodate claim for her personal car use accommodation under the ADA and RA, are DISMISSED. In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Hon. Valerie E. Caproni. Any requests for an extension of time for filing objections must be directed to Judge Caproni. If Plaintiff wishes to review, but does not have access to, cases cited herein that are reported on Westlaw, he should request copies from Defendant. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).
The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to the pro se Plaintiff.