Opinion
Civil Action 20 Civ. 1555 (PGG) (SLC)
05-07-2021
DWAIN MITCHELL, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION; DAISY FONTANEZ, Former Principal of MS 415 Wadleigh Secondary School for Visual and Performing Arts, Defendants.
THE HONORABLE PAUL G. GARDEPHE, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
SARAH L. CAVE UNITED STATES MAGISTRATE JUDGE
I.INTRODUCTION
Plaintiff Dwain Mitchell filed this action, pro se, asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621, et seq. (“ADEA”), 42 U.S.C. § 1981 (“Section 1981”), New York State Human Rights Law, N.Y. Exec. L. § 290 et seq. (“NYSHRL”), and New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (“NYCHRL”), against Defendants New York City Department of Education (“DOE”) and Daisy Fontanez (“Fontanez”), the former Principal of M.S. 415 Wadleigh Secondary School for Visual and Performing Arts (“Wadleigh”) (DOE and Fontanez together, “Defendants”). (ECF No. 2). Mitchell's claims are predicated on his allegations that, inter alia, during his employment at DOE and Wadleigh, he was subjected to age, race, and gender discrimination, and retaliation, resulting in his “discontinuance” in June 2018. (See id.)
Defendants have moved to dismiss Mitchell's Complaint under Federal Rule of Civil Procedure 12(b)(6) (the “Motion”). (ECF No. 13).
For the reasons set forth below, the Court respectfully recommends that the Motion be GRANTED IN PART and DENIED IN PART, and that Mitchell be granted leave to amend certain of his claims.
II.BACKGROUND
A. Factual Background
1. Mitchell's employment and allegations of discrimination and retaliation
Mitchell is an African American man, 67 years of age when he filed the Complaint. (ECF No. 2 at 8 ¶¶ 2, 4). Mitchell began working for DOE in 1994 and was most recently working at Wadleigh. (Id. at 8 ¶ 1). The Complaint does not further specify the nature of Mitchell's employment except to note that Mitchell was “formally appointed” at Wadleigh for the 2017-18 and 2018-19 school years and had previously been a full time substitute teacher “under [his] social studies license” for the 2014-15 and 2015-16 school years. (Id. at 9 ¶ 13).
Mitchell includes an addendum to his Complaint with thirteen numbered paragraphs. (ECF No. 2 at 89). Accordingly, for clarity, the Court's citations to the addendum include the page and paragraph number.
According to the Complaint, Mitchell's students largely succeeded under his instruction: “95% of my students passed on to the next grade, all of my seniors graduated, [two] of my students scored the highest Regents Test Scores in Social Studies at Wadleigh, [two] of my Special Education Students scored the highest Regents Global for Wadleigh, and [two] Art Students received full scholarships for their MOMA[-]displayed artwork for photographic creativity.” (ECF No. 2 at 8 ¶ 7).
Mitchell was not supported by Wadleigh's administration, was disciplined and subjected to retaliation, and ultimately, terminated. (ECF No. 2 at 5, 8-9). Mitchell alleges that he was “targeted and discriminated against” by Fontanez and nonparty Superintendent Ilene Altschul in the 2016-17 and 2017-18 school years on the basis of his age, race, and gender. (Id. at 8 ¶ 3). The allegations below are relevant to the claims for discrimination and retaliation:
1. Fontanez rated Mitchell's 2016-17 school year performance “ineffective” in his Annual Teacher Performance Review, which Mitchell alleges was inconsistent with the performance of his students. (ECF No. 2 at 8 ¶ 8). Mitchell appealed the rating (the “Appeal”) and participated in a contentious Appeals Hearing on February 26, 2018. (Id. at ¶ 9).
2. Mitchell “was retaliated against by my school administration for speaking out about my classroom and school issues during October 2017. I had no ICT CoTeacher, no Administrative support, no help with problem students, and there was no available Dean or Safety officers at the school.” (ECF No. 2 at 8 ¶ 5).
3. Mitchell “was not given the support of an additional ICT Teacher in [two classes] for the entire 2017-2018 school year as required by law.” (ECF No. 2 at 8 ¶ 6).
4. Mitchell was retaliated against “for giving sworn testimony to the DOE Office of Special Investigations” (“OSI”) in support of a teacher who had been accused of facilitating cheating during a Regents examination in January 2017. (ECF No. 2 at 8 ¶ 10). The accused teacher, a woman, was “discontinued” on June 25, 2018, the same day as Mitchell. (Id.)
5. Mitchell was retaliated against for creating and disseminating on YouTube on March 18, 2018 a video titled “Save Wadleigh” (the “Youtube Video”), which “demand[ed] [that] . . . Fontanez and Superintendent Altschul be removed . . . due to poor management, teacher displeasure and community outrage with them. Upon information and belief . . . both [] Fontanez and Superintendent Altschul were removed due to poor management in August 2018.” (ECF No. 2 at 8 ¶ 11).
The Complaint also identifies four other teachers, Ashtok Bhati, Kevin Johnson, Thomas Chirgwin, and Gustav Kome (together, the “Other Removed Teachers”), who were at least 60 years old, “men of color, and earned salaries over $100,000, ” and were also “removed/dismissed/eliminated from teaching at Wadleigh[.]” (ECF No. 2 at 8 ¶ 4). The Complaint does not further allege any details concerning the circumstances of the Other Removed Teachers' employment or removal. (See id.)
2. Mitchell's claims and damages
Mitchell's Complaint includes five causes of action against all of the Defendants: (1) race and sex discrimination, and retaliation, in violation of Title VII; (2) race discrimination and retaliation in violation of Section 1981; (3) age discrimination and retaliation in violation of the ADEA; (4) age, race, color and sex discrimination, and retaliation, under the NYSHRL; and (5) age, race, color, and gender discrimination, and retaliation, under the NYCHRL. (ECF No. 2 at 3-4). Mitchell does not allege a harassment or hostile work environment claim. (See id. at 4-5).
Mitchell alleges that the discrimination and retaliation by Defendants negatively affected his health, requiring emergency cardiac treatment on June 22, 2018, several days before his discontinuance, and causing sleep apnea, anxiety, and insomnia. (ECF No. 2 at 9 ¶ 12). Mitchell alleges that, as a result of Defendants' actions, he lost his health insurance and his pension and income were “severely negatively impacted.” (Id.) Mitchell also “believe[s] [he] had tenure by estoppel” based on his employment as a fulltime substitute teacher in 2014-15 and 2015-16, which meant that he was entitled to a “Section 3020-a tenure hearing before being taken off payroll in June 2018.” (Id. at ¶ 13).
Mitchell seeks a reversal of the “ineffective” rating, restoration of his salary, back pay, and unspecified retirement and medical benefits. (ECF No. 2 at 6).
3. Discrimination Charge
On April 2, 2019, Mitchell filed a charge of discrimination (the “Discrimination Charge”) with the New York State Division of Human Rights, which accepted the Discrimination Charge on behalf of the U.S. Equal Employment Opportunity Commission (“EEOC”). (See ECF No. 2 at 6, 14). Like the Complaint, the Discrimination Charge includes an addendum, which includes twelve paragraphs of factual allegations, alleges age, race or color discrimination and sex discrimination, and retaliation following the Youtube Video, the Appeal, and Mitchell's termination. (Id. at 1117). As alleged in the Discrimination Charge, the most recent act of discrimination occurred on July 25, 2018, which was after Mitchell's last day of work on June 22, 2018; the Discrimination Charge identifies Fontanez as the individual who discriminated against him. (Id. at 11).
The EEOC issued a Dismissal and Notice of Rights on January 9, 2020, which Mitchell received on January 11, 2020. (ECF No. 2 at 6, 10). The Dismissal and Notice of Rights indicates that the EEOC was closing its case concerning Mitchell's allegations because he planned to file an action in federal court. (Id. at 10).
This document is alternately identified as a “Notice of Right to Sue” in the Complaint. (ECF No. 2 at 6).
B. Procedural Background
On February 20, 2020, Mitchell filed the Complaint. (ECF No. 2). On September 25, 2020, Defendants filed the Motion. (ECF Nos. 13-16). On September 26, 2020, the Honorable Paul G. Gardephe referred the Motion to the undersigned for this Report and Recommendation. (ECF No. 17). Mitchell's opposition to the Motion (the “Opposition”), dated October 30, 2020, and Defendants' reply were both filed November 6, 2020. (ECF Nos. 22-23). After the Motion was fully briefed, Judge Gardephe granted the parties' requests to deem their submissions to encompass Fontanez, who had not been served when the Motion was filed. (ECF Nos. 20, 25, 27-29).
On October 8, 2020, the Court granted Mitchell's application for the Court to issue a summons to Fontanez at an updated address. (ECF No. 20). Fontanez was served on October 27, 2020, and Corporation Counsel first appeared for Fontanez on November 13, 2020. (ECF Nos. 24, 26).
III.DISCUSSION
A. Legal Standard for Motion to Dismiss
In reviewing a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court accepts as true all factual allegations in the complaint and draws all reasonable inferences in favor of the plaintiff. See N.J. Carpenters Health Fund v. Royal Bank of Scotland Grp., PLC, 709 F.3d 109, 119 (2d Cir. 2013); Trujillo v. City of New York, No. 14 Civ. 8501 (PGG), 2016 WL 10703308, at *4 (S.D.N.Y. Mar. 29, 2016). In this pro se case, “the Court reads [Mr. Mitchell's] papers ‘liberally' and ‘interpret[s] them to raise the strongest arguments that they suggest.'” Williams v. N.Y.C. Dep't of Educ., No. 17 Civ. 1996 (AJN), 2018 WL 4735713, at *1 (S.D.N.Y. Sept. 29, 2018) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). “This standard is particularly applicable when a plaintiff is alleging employment discrimination, because a court is obligated to construe [a pro se plaintiff's] pleadings liberally, particularly when they allege civil rights violations.” Williams v. Victoria's Secret, No. 15 Civ. 4715 (PGG) (JLC), 2017 WL 384787, at *7 (S.D.N.Y. Jan 27, 2017), adopted 2017 WL 1162908 (Mar. 28, 2017) (internal citation omitted).
“[T]he Court must assess whether the complaint ‘contain[s] sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'” Trujillo, 2016 WL 10703308, at *4 (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation omitted)). A claim has “facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. 662, 678 (2009).
“‘[A] plaintiff alleging employment discrimination or retaliation is not required to plead facts sufficient to establish a prima facie case.'” Trujillo, 2016 WL 10703308, at *4 (quoting Krasner v. HSH Nordbank AG, 680 F.Supp.2d 502, 512 (S.D.N.Y. 2010)). Rather, “‘the ordinary rules for assessing the sufficiency of a complaint' under Fed.R.Civ.P. 8(a)'s notice pleading standard apply.” Id. (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511 (2002)). Under Rule 8(a), a plaintiff must set forth a “short and plain statement of the claim, ” Fed.R.Civ.P. 8(a), “with sufficient factual ‘heft to sho[w] that the pleader is entitled to relief.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (internal citation omitted)). To withstand a motion to dismiss, the complaint must contain factual allegations that “‘raise a right of relief above the speculative level' . . . and present claims that are ‘plausible on [their] face.'” Id. (quoting Twombly, 550 U.S. at 555, 570). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. A complaint that pleads facts “merely consistent with” a defendant's liability “stops short of the line between possibility and plausibility of entitlement to relief.” Twombly, 550 U.S. at 557 (internal citation omitted). If “the allegations in a complaint, however true, could not raise a claim of entitlement to relief, ” id. at 558, or if the plaintiff has “not nudged [his] claims across the line from conceivable to plausible, the[] complaint must be dismissed.” Id. at 570. The Second Circuit has explained that, where a complaint “consist[s] of nothing more than naked assertions, and set[s] forth no facts upon which a Court could find a violation of the Civil Rights Act, [it] fails to state a claim under Rule 12(b)(6).” Martin v. N.Y. State Dep't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978).
In reviewing the Motion, the Court considers “the allegations contained within the four corners of the” Complaint, Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998), and may consider “documents attached . . . as exhibits, and documents incorporated by reference.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). The Court may also consider a document that, although not incorporated by reference, the Complaint relies on for its terms such that the document is “integral to the complaint.” Id. Finally, the Court may take judicial notice of the fact, but not the content or truth, of testimony in another judicial proceeding. See Pu v. Russell Publ'g Grp., Ltd., No. 15 Civ. 3936 (VSB), 2016 WL 9021990, at *7 (S.D.N.Y. Sept. 2, 2016) (citing Lia v. Saporito, 909 F.Supp.2d 149, 177-78 (E.D.N.Y. 2012), affirmed 541 F. App'x. 71 (2d Cir. 2013)).
The Court deems the copy of Mitchell's Verified Complaint filed with the New York State Division of Human Rights (ECF No. 15-2), which Mitchell attached to the Complaint, as a document incorporated by reference and appropriate for consideration on this Motion. (See ECF No. 2).
B. The NYSHRL and NYCHRL Claims against the DOE
Under New York law, a plaintiff seeking to bring a claim against a school district or its “officers” that involves the rights or interests of the school district must file a written notice of claim on the governing board of the district within 90 days of the accrual of the claim. N.Y. Educ. L. § 3813(1) (“the Education Law”); see United States v. N.Y.C. Dep't of Educ., No. 16 Civ. 4291 et al. (LAK) (JCF), 2017 WL 1169653, at *2 (S.D.N.Y. Mar. 28, 2017). The notice of claim requirements “apply to causes of action sounding in discrimination, retaliation, and defamation.” Smith v. N.Y.C. Dep't of Educ., 808 F.Supp.2d 569, 578 (S.D.N.Y. 2011) (collecting cases). The Education Law requires that a plaintiff plead and prove compliance with the notice of claim requirement, or risk dismissal of the claim. Santiago v. Newburgh Enlarged City Sch. Dist., 434 F.Supp.2d 193, 196 (S.D.N.Y. 2006) (dismissing claims for failure to file timely notice of claim); Moore v. City of New York, No. 08 Civ. 8879 (PGG), 2010 WL 742981, at *9 (S.D.N.Y. Mar. 2, 2010); Biggers v. Brookhaven-Comsewogue Union Free Sch. Dist., 127 F.Supp.2d 452, 455 (S.D.N.Y. 2001); Smith, 808 F.Supp.2d at 578 (recognizing that “[n]otice of claim requirements are construed strictly by New York state courts and failure to abide by their terms mandates dismissal of the action” (citation omitted)).
The notice of claim requirement does not apply to claims against administrators or other school employees. See Bacchus v. N.Y.C. Dep't of Educ., 137 F.Supp.3d 214, 235 (E.D.N.Y. 2015) (determining that an assistant school principal was not an “officer” under the Education Law); Williams, 2018 WL 4735713, at *7 (same); Eubanks v. N.Y.C. Dep't of Educ., No. 18 Civ. 7877 (LJL) (SLC), 2021 WL 1110587, at *8-9 (S.D.N.Y. Feb. 3, 2021) (same), adopted by 2021 WL 1105065 (S.D.N.Y. Mar. 23, 2021).
Mitchell does not allege or otherwise show in his Opposition that he filed a notice of claim, and it remains undisputed that Mitchell did not file a notice of claim. (See ECF No. 22). Accordingly, the Court respectfully recommends that Mitchell's claims under the NYSHRL and NYCHRL against Defendant DOE be dismissed with prejudice. The notice of claim requirement, however, does not apply to Mitchell's claims against Fontanez, and the Court will analyze the merits of those claims infra. (See § III.E (Discrimination Claims), § III.F (Retaliation Claims)).
The Court also notes that the statute of limitations under the NYSHRL and NYCHRL for actions against Defendant DOE is one year, and therefore any allegedly discriminatory action that took place more than one year before the filing of the Complaint is barred by the statute of limitations. See Dimitracopoulos v. City of New York, 26 F.Supp.3d 200, 211 (E.D.N.Y. 2014) (citing N.Y. Educ. Law § 3813(2-b) ("[N]o action or special proceeding shall be commenced against any [school, school district, board of education, or an ‘officer of a school district, board of education . . .] more than one year after the cause of action arose.”); Harris v. Board of Education, 230 F.Supp.3d 88, 100-01 (E.D.N.Y. 2017). By contrast, the statute of limitations for Mitchell's NYSHRL and NYCHRL claims against Fontanez is three years. Dimitracopoulos, 26 F.Supp.3d at 211.
C. Timeliness of ADEA and Title VII Claims
The ADEA requires that a complainant file an ADEA charge with the EEOC within 300 days of the alleged discriminatory action. Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 328 (2d Cir. 1999) (citing 29 U.S.C. § 626(d)). Title VII also requires that individuals aggrieved by discrimination file a charge within 300 days “after the alleged unlawful employment practice occurred.'” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 78-79 (2d Cir. 2015) (quoting 42 U.S.C. § 2000e-5(e)(1)). Discrete discriminatory acts, such as termination or failure to promote “are not actionable if time barred.” Id. at 79 (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)). When a plaintiff alleges a discrete act of employment discrimination, “each act triggers the running of the limitations period.” Williams, 2018 WL 4735713, at *5. By contrast, when a plaintiff alleges a continuing violation or ongoing practice such as a hostile work environment, he “need only show that part of the violation took place within the limitations period.” Id. at *6 (citation omitted); see Vega, 801 F.3d at 79-80 (holding that although discrete actions before 2009 were time-barred, a plaintiff's assertion that, beginning around 2008 he began to receive extra work on a discriminatory basis, suggested an ongoing practice and was therefore not untimely).
Mitchell filed his Discrimination Charge on April 2, 2019. (ECF No. 2 at 6, 11-14). Defendants argue in the Motion that “any alleged discriminatory acts” occurring more than 300 days before this date (that is, before June 6, 2018) are time-barred. (ECF No. 14 at 12). The Court agrees that under the ADEA and Title VII, claims predicated on discrete actions occurring before June 6, 2018 are untimely. Here, the Complaint's allegations include discrete actions, such as: (i) an ineffective rating for the 2016-17 school year; (ii) lack of institutional support such as an “ICT Co-Teacher” for the 2017-18 school year (the exact dates of which are unspecified in the Complaint) and (iii) his termination on June 25, 2018. (ECF No. 2 at 8-9); see, e.g., Williams, 2018 WL 4735713, at *5-6 (finding complaint alleged “quintessentially discrete acts” including termination or demotion and failure to promote; and dismissing as untimely allegations outside of the 300-day window, including for tampering with plaintiff's title, failing to pay plaintiff a permanent salary, and failing to compensate certain work). Only the last of these actions, Mitchell's termination on June 25, 2018, is within 300 days of his filing the Complaint. Accordingly, the Court respectfully recommends that ADEA and Title VII claims based on discrete actions of discriminatory conduct occurring before June 6, 2018-the ineffective rating for the 2016-17 school year and lack of institutional support for the 2017-18 school year, if it ended before June 6, 2018-be dismissed as untimely.
Defendants set forth June 7, 2018 as the cutoff date 300 days before the filing of the Complaint. (ECF No. 14 at 12). By the Court's calculation the cutoff date is instead June 6, 2018.
D. Individual Liability under the ADEA & Title VII
In the Second Circuit, “it is long settled that individual defendants may not be subject to liability under Title VII.” Williams, 2018 WL 4735713, at *4 (citing Patterson v. Cnty. Of Oneida, 375 F.3d 206, 221 (2d Cir. 2004)). “[A]s far as the term ‘employer' is concerned, the ADEA was modeled after Title VII[.]” Wray v. Edward Blank Assocs., Inc., 924 F.Supp. 498, 503 (S.D.N.Y. 1996). Courts in this circuit have therefore consistently held that the ADEA does not impose liability on individuals. Williams, 2018 WL 4735713 at *4 (collecting cases); Guerra v. Jones, 421 Fed.Appx. 15, 17 (2d Cir. 2011) (holding that dismissal of Title VII and ADEA claims against individual defendants “was appropriate as neither statute subjects individuals, even those with supervisory liability over the plaintiff, to personal liability.”).
Accordingly, the Court respectfully recommends that Defendants' Motion to dismiss Mitchell's ADEA and Title VII claims against Fontanez be GRANTED, and these claims be dismissed with prejudice.
E. Discrimination Claims
1. Legal standards
The Court analyzes Mitchell's age, race and gender discrimination claims under Title VII, the ADEA, and the NYSHRL under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Dabney v. Christmas Tree Shops, 958 F.Supp.2d 439, 450 n.11 (S.D.N.Y. 2013) (addressing discrimination claims based on race, gender, and age together under the McDonnell Douglas standard until the “final stage” of the ADEA analysis) (citing Dixon v. Int'l Fed'n of Acct., 416 Fed.Appx. 107, 109 (2d Cir. 2011) (summary order) (“All of [plaintiff's] discrimination claims are analyzed under the three-step burden shifting framework from McDonnell Douglas . . .”). Likewise, age and race discrimination claims under Section 1981 and the NYCHRL are also “generally analyzed” under this same framework. Barbosa v. Continuum Health Partners, Inc., 716 F.Supp.2d 210, 217 (S.D.N.Y. 2010); see Pachecho v. N.Y. Presbyterian Hosp., 593 F.Supp.2d 599, 629 (S.D.N.Y. 2009) (analyzing Section 1981 claims under the McDonnell Douglas framework and determining that the inability to establish a Title VII claim was “equally fatal” to the Section 1981 claim); Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999) (analyzing NYSHRL and NYCHRL race discrimination claims under the McDonnell Douglas framework).
“Under this standard, Plaintiff must show that: (1) she is a member of a protected class; (2) she was qualified for the position she held; (3) she suffered an adverse employment action; and (4) the adverse action took place under circumstances giving rise to an inference of discrimination.” Milord-Francois v. N.Y.S. Office of the Medicaid Inspector Gen., No. 19 Civ. 179 (LJL), 2020 WL 5659438, at *10 (S.D.N.Y. Sept. 23, 2020). “If a plaintiff can meet the initial burden of showing a prima facie case, ‘the burden then shifts to the defendant to offer a legitimate nondiscriminatory reason for the [adverse employment action]. If the defendant does so, the burden returns to the plaintiff to show that the real reason for [the adverse employment action] was' her membership in a protected class.” Boatright v. U.S. Bancorp, No. 18 Civ. 7293 (LJL), 2020 WL 7388661, at *14 (S.D.N.Y. Dec. 16, 2020) (citing Ruiz v. Cnty. of Rockland, 609 F.3d 486, 49192 (2d Cir. 2010)). Although at this stage Mitchell need not plead a prima facie case of discrimination to survive a motion to dismiss, he “must allege sufficient facts showing that [he] is entitled to relief.” Bermudez v. City of New York, 783 F.Supp.2d 560, 575 (S.D.N.Y. 2011).
Under the ADEA, “the final stage [of the analysis] is different. The plaintiff must show not only that the defendant discriminated on the basis of age, but also that age discrimination was the ‘but-for' cause of the adverse action, and not merely one of the motivating factors.” Dabney, 958 F.Supp.2d at 451 (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009)); See Yu v. N.Y.C. Hous. Dev. Corp., 494 Fed.Appx. 122, 124-25 (2d Cir. 2012).
Under Title VII, it is unlawful for an employer to “discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of [his] race, color, religion, sex, or national origin[.]” 42 U.S.C. § 2000e-2(a)(1). The ADEA also prohibits age discrimination, and under the ADEA it is unlawful for an employer to “discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of [his] age[.] 29 U.S.C. § 623(a)(1). A plaintiff alleging discriminatory discharge under the ADEA or Title VII must show that “(1) she is a member of a protected class or age group; (2) she was qualified to perform the job in question; (3) she was discharged; and (4) the discharge occurred under circumstances giving rise to an inference of discrimination based on membership in the protected class.” Dabney, 958 F.Supp.2d at 451 (citing Slattery v. Swiss Reins. Am. Corp., 248 F.3d 87, 91 (2d Cir. 2001) (setting forth ADEA standard); Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000) (setting forth Title VII standard)).
Finally, Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts[.]” 42 U.S.C. § 1981(a). The Civil Rights Act of 1991 expanded Section 1981 to prohibit discrimination occurring after contract formation “with respect to the enjoyment of benefits, privileges, terms, and conditions of a contractual relationship, such as employment.]” Patterson, 375 F.3d at 224.
2. Application
a. Defendants' arguments
Defendants do not dispute that as a sixty-seven-year-old African American, Mitchell is a member of a protected class, he was qualified for the position he held, and his discontinuance was an adverse employment action. (ECF No. 14 at 18). Defendants argue that Mitchell cannot establish the fourth element of a prima facie case, that his age was the “but-for” cause of his discharge or that his race and gender were motivating factors leading to that discharge. (Id.)
Defendants characterize Mitchell's allegations as speculative and conclusory, lacking in sufficient factual enhancements to set forth plausible claims. (See ECF No. 14 at 18). Defendants point out that Mitchell's statements “I have been the victim of age, race, and gender discrimination . . .” and “I was retaliated against . . .” are conclusory labels. (Id.) (citing ECF No. 2 at 8 ¶¶ 3, 10). Defendants note that Mitchell does not allege any facts to connect age, race, or gender discrimination to his termination, the lack of institutional support, or Wadleigh's failure to provide him an ICT support teacher. (Id. at 18-20) (citing ECF No. 2). For example, Defendants note that Mitchell does not reference any comments made by his superiors concerning any protected characteristics. (ECF No. 23 at 10). Defendants further argue that Mitchell fails to allege that any comparators, who were not African American men of his age group, were treated differently. (ECF No. 14 at 19-20). Finally, Defendants argue that Mitchell's reference to the Other Removed Teachers, that is, the “remov[al]/dismiss[sal]/eliminat[ion]” of four other teachers “who were age 60 years or older, male, men of color, and earned salaries over $100,000 a year[]” does not establish an inference of discrimination where he does not specify the race of these teachers or other facts to suggest that their removal was predicated on their status in protected classes. (Id. at 20) (citing ECF No. 2 at 8 ¶ 4). Defendants also note that Mitchell identifies a female teacher who was removed, undercutting any inference of gender bias. (Id. (citing ECF No. 2 at 8 ¶ 10).
b. Mitchell's Opposition
In the Opposition, Mitchell sets forth additional facts not alleged in the Complaint, including that “the Wadleigh school administration rid itself of older black and white teachers while they retained younger Hispanic teachers, ” including Jason Coppola and Kirby Mason, who were given tenure. (ECF No. 22 at 9).
With the limited exception of documents incorporated by reference (see supra § III.A n.4), the Court ordinarily does not consider matters outside of the pleadings in resolving a motion to dismiss, which includes “new factual allegations in memoranda, affidavits, declarations, and sur-replies.” Chartwell Therapeutics Licensing, LLC v. Citron Pharma LLC, No. 16-CV-3181 (RPK) (CLP), 2020 WL 7042642, at *9-10 (E.D.N.Y. Nov. 30, 2020) (disregarding new factual allegations in plaintiff's opposition) (citing Chambers v. Time Warner, Inc., 282 F.3d 147, 154 (2d Cir. 2002)).
In light of Mitchell's status as a pro se litigant, however, the Court may consider the facts alleged in his Opposition for the purpose of assessing whether granting leave to amend the Complaint would be worthwhile. See Nielsen v. Rabin, 746 F.3d 58, 63-64 (2d Cir. 2014) (reversing the district court's denial of leave to amend, finding that if the complaint “were amended to include the allegations in [plaintiff's] opposition to the motion to dismiss . . . amendment would not be futile.”).
Accordingly, the Court will consider the newly-alleged facts that appear in Mitchell's Opposition in the context of determining whether recommending leave to amend is warranted.
c. Causal connection
In Vega v. Hempstead Union Free School District, the Second Circuit explained that a plaintiff could “prove discrimination indirectly either by meeting the requirements of McDonnell Douglas and showing that the employer's stated reason for its employment action was pretext to cover up discrimination . . . or by otherwise creating a ‘mosaic' of intentional discrimination by identifying ‘bits and pieces of evidence' that together give rise to an inference of discrimination.” 801 F.3d at 87 (quoting Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998) abrogated in part on other grounds, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)).
The Second Circuit in Vega pointed to at least three allegations that the plaintiff suffered an adverse employment action “because of” his Hispanic ethnicity: (1) “he was assigned a large percentage of Spanish-speaking students because he [was] Hispanic and bilingual, while his similarly-situated co-workers were not assigned additional work”; (2) a “University of Puerto Rico” banner was placed outside his classroom; and (3) there was an attempt to transfer him to a Hispanic principal's school. 801 F.3d at 88-89. The court found that these actions, in combination, were “plausibly connected to [his] Hispanic background and therefore provide[d] a contextual basis for inferring discrimination, ” and he had “plausibly alleged that his Hispanic background was a ‘motivating factor'” that contributed to his adverse employment action. Id. at 89 (citing Raniola v. Bratton, 243 F.3d 610, 628 (2d Cir. 2001)).
By contrast, Mitchell has not demonstrated any evidence of discrimination, and there are no racial, ethnic, gender, or age-related connections to his lack of institutional support, performance evaluation, and termination. See Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir. 2015) (noting that “none of Defendants' actions directly indicates racial bias”). Mitchell's assertion that he was the victim of age, race, and gender discrimination, as currently pled in the Complaint, is conclusory, based on Mitchell's belief and speculation, and does not plausibly establish his discrimination claim. See McLaughlin v. N.Y.C. Bd. of Educ., No. 04 Civ. 1270 (FM), 2008 WL 216308, at *12 (S.D.N.Y. Jan. 22, 2008) (“conclusory statements are not sufficient to create a genuine issue of material fact regarding the Defendants' motivation for his termination”); Amaya v. Ballyshear LLC, 295 F.Supp.3d 204, 220 (E.D.N.Y. 2018) (“The complaint's conclusory claim that the discrimination caused the termination does not follow the facts set forth in the complaint. It is strictly conclusory and lacks evidentiary support.”); Manolov v. Borough of Manhattan Cmty. Coll., 952 F.Supp.2d 522, 532 (S.D.N.Y. 2013) (granting motion to dismiss where plaintiff did not allege any facts from which the court could infer discriminatory intent or motivation).
The new factual allegation in the Opposition, that two named (and seemingly male) “younger teachers” were given tenure and not fired, (ECF No. 22 at 9), would not in itself lead to a contrary outcome, as “a plaintiff claiming disparate treatment must allege facts to establish that she was similarly situated in all material respects to the individuals with whom she seeks to compare herself.” Batiste v. City Univ. of N.Y., No. 16 Civ. 3358 (VEC), 2017 WL 2912525, at *9 (S.D.N.Y. Jul. 7, 2017) (internal citation omitted).
Accordingly, the Court respectfully recommends that the Discrimination Claims brought under Title VII, the ADEA, Section 1981 and the NYSHRL and NYCHRL be dismissed without prejudice.
F. Retaliation Claims
1. Legal standards
To establish a prima facie retaliation claim, a plaintiff must plausibly allege that: (1) he suffered a “materially adverse” employment action, Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007); (2) he participated in a “protected activity”; and (3) the adverse employment action is “causally connected” to his participation in the protected activity. Bermudez, 783 F.Supp.2d at 575. Retaliation claims under Title VII, the ADEA, Section 1981, the NYSHRL, and the NYCHRL are evaluated under the McDonnell-Douglas three-step burden-shifting analysis. See Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010); Hill, 467 F.Supp.2d at 367 (“[NYSHL] claims are analytically identical to claims that arise under Title VII”); Williams v. Time Warner, Inc., No. 09 Civ. 2962 (RJS), 2010 WL 846970, at *4 n.5 (S.D.N.Y. Mar. 3, 2010) (applying the same analysis to the NYCHRL); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) (applying the McDonnell-Douglas analysis to ADEA retaliation claims).
“An adverse employment action in the context of retaliation is different than in the context of discrimination.” Sosa v. N.Y.C. Dep't of Educ., 368 F.Supp.3d 489, 517 (E.D.N.Y. 2019). For retaliation, “an adverse employment action is any action that could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Vega, 801 F.3d at 90 (internal citation omitted); see, e.g., Patane, 508 F.3d at 116 (finding plaintiff's allegations that employers failed to assign her work in order to induce her to quit her job was an adverse employment action because it would cause someone to “think twice” about engaging in protected activity). This “covers a broader range of conduct than does the adverse-action standard for claims of discrimination[.]” Vega, 801 F.3d at 90 (finding the same conduct that did not constitute an adverse employment action in the context of discrimination did constitute an adverse employment action in the context of retaliation).
The elements of a prima facie case of retaliation under the NYCHRL are “identical” to Title VII, except that the NYCHRL employs a broader standard of an “adverse employment action” than its federal and state counterparts. Smith v. City of New York, 385 F.Supp.3d 323, 345-46 (S.D.N.Y. 2019). “Unlike retaliation claims under Section 1983 and the NYSHRL, ” however, “the retaliation complained of under the NYCHRL need not result in an ultimate action with respect to employment . . . or in a materially adverse change in the terms or conditions of employment.” Bermudez, 783 F.Supp.2d at 577. Rather, the retaliatory act of which the plaintiff complains must “be reasonably likely to deter a person from engaging in protected activity.” Kumaga v. N.Y.C. Sch. Constr. Auth., No. 127817/02, 27 Misc.3d 1207(A), 2010 WL 1444513, at *15 (N.Y. Sup. Ct. Apr. 2, 2010) (quoting N.Y. Admin. Code § 8-107). The plaintiff must also show a “causal link” between the protected activity and the retaliation. Id.
2. The parties' arguments
Defendants argue that Mitchell did not engage in any protected activity, and that, even if the Court deemed protected activity certain actions - creating the Youtube Video, “speaking out” about school issues in October 2017, and giving sworn testimony to the DOE's OSI at an unspecified time - there is no causal connection between these protected activities and Defendants' adverse actions. (ECF No. 14 at 21-22 (citing ECF No. 2 at 8 ¶¶ 5, 10-11)).
In the Complaint, Mitchell alleges that he was retaliated against for his protected activities and “discontinued” on June 25, 2018. (ECF Nos. 2 at 8-9, 22 at 5-7). In the Opposition, Mitchell alleges for the first time that he “filed at least five special complaint referrals on behalf of special education students in May and June 2018, and was retaliated against soon after with a discontinuance . . .” (ECF No. 22 at 10). Mitchell also alleges for the first time that the Youtube Video included advocacy on behalf of special education students at Wadleigh. (Id. at 10). On the basis of these new facts, Mitchell seeks to seeks to amend the Complaint to add a retaliation claim under Section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). (Id.)
The Rehabilitation Act protects disabled individuals from discrimination under any program or activity receiving federal financial assistance, 29 U.S.C. § 794(a), and advocacy on behalf of special education student may constitute protected activity under the Rehabilitation Act. See Payson v. Bd. of Educ. of Mount Pleasant Cottage Sch., USFD, No. 14 Civ. 9696 (JCM), 2017 WL 4221455, at *24 (S.D.N.Y. Sept. 20, 2017).
3. Application
a. Protected activity known to Defendants
Protected activity is a formal or informal complaint about employment practices or conditions that is motivated by a “good faith, reasonable belief that the underlying employment practice was unlawful, ” even if the practices or conditions were not actually unlawful. Rivera v. Rochester Genesee Reg'l Transp. Auth., 743 F.3d 11, 24 (2d Cir. 2014). “Complaining about general unfairness, unaccompanied by any indication that [the] plaintiff's protected class status caused the unfairness, does not qualify as protected activity.” Batiste, 2017 WL 2912525, at *10 (citing Williams v. Time Warner, 2010 WL 846970, at *4 (“[W]orkplace difficulties entirely consistent with non-race-, non-gender-based personality disputes . . . are plainly not actionable under statutes intended to root out discrimination on the basis of certain statutorily defined protected characteristics.”), aff'd, 440 Fed.Appx. 7 (2d Cir. 2011)).
In addition to alleging a protected activity, the Complaint must also plead that the “‘actual decisionmaker' responsible for the adverse actions was aware of [the] protected activity[.]” Williams v. Time Warner, 2010 WL 846970, at *5 (finding retaliation claim deficient where the Complaint alleged that plaintiff complained that she was being stereotyped as an “angry black woman” but did not allege that those responsible for plaintiff's termination were aware of her complaint).
Broadly construing Mitchell's arguments, and limiting the Court's analysis to the factual allegations in the Complaint, the Court construes Mitchell as asserting that the following actions constitute protected activity:
1. “[S]peaking out about my classroom and school issues during October 2017 [including] . . . no ICT Co-Teacher, no Administrative support, no help with problem students, and . . . no available Dean or Safety Officers at the school.” (ECF No. 2 at 8 ¶ 5).
2. Appealing an unwarranted “ineffective” rating for the 2016-17 school year and engaging in “many disagreements” at the subsequent February 26, 2018 Appeals Hearing. (Id. ¶¶ 8-9).
3. Providing sworn testimony (at an unspecified date) to the DOE OSI in support of a teacher alleged to have assisted students with cheating on the Regents examination in January 2017. (Id. ¶ 10).
4. Creating the Youtube Video, which “demand[ed] [that Wadleigh] remain open and Principal Fontanez and Superintendent Altschul be removed from Wadleigh due to poor management, teacher displeasure, and community outrage with them.” (Id. ¶ 11).
Categories 1, 2, and 4 do not constitute protected activity in the absence of allegations that Mitchell was complaining about unlawful and discriminatory conduct, rather than mere workplace difficulties. See Batiste, 2017 WL 2912525, at *10-11 (“Complaining about general unfairness, unaccompanied by any indication that plaintiff's protected class status caused the unfairness, does not qualify as protected activity.”). Moreover, these allegations fail to establish protected activity because there is no indication that the decisionmakers responsible for any adverse employment action knew about, or viewed, the Youtube Video, knew about the evaluation appeal, or were aware that Mitchell was speaking out about classroom issues. Williams v. Time Warner, 2010 WL 846970, at *5.
The third category, Mitchell's sworn testimony to the DOE's OSI, also does not constitute a protected activity because Mitchell's testimony concerned purported cheating and dishonesty, rather than discriminatory conduct. See Blythe v. City of New York, 963 F.Supp.2d 158, 177-78 (E.D.N.Y. 2013) (granting summary judgment on Section 1981 retaliation claim predicated in part on plaintiff teacher's testimony at a student's suspension hearing); cf. Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 175 (2d Cir. 2005) (finding that a “volunteer witness poised to testify in support of a co-worker's discrimination claims” engaged in a protected activity)
In sum, the Complaint does not allege that Mitchell engaged in any protected activity known to Defendants. Therefore, the Court respectfully recommends that Mitchell's Retaliation Claims under Title VII, the ADEA, Section 1981, the NYSHRL and the NYCHRL be dismissed without prejudice.
G. Municipal Liability under Monell
To the extent that Mitchell is asserting a municipal liability claim against Defendant DOE under Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978), he has failed to state a claim because the Complaint does not identify a municipal policy that allegedly caused the constitutional violation.
“The elements of a Monell claim are (1) a municipal policy or custom that (2) causes the plaintiff to be subjected to (3) the deprivation of a constitutional right.” Agosto v. N.Y.C. Dep't of Educ., 982 F.3d 86, 97 (2d Cir. 2020) (citing Batista v. Rodriguez, 702 F.2d 393, 397 (2d Cir. 1983)). A government should only be held responsible “when, and only when, their official policies cause their employees to violate another person's constitutional rights.” City of St. Louis v. Praprotnik, 485 U.S. 112, 122 (1988) (plurality opinion).
A plaintiff asserting “[Section] § 1981 claims against the City, or against the individual City defendants in their official capacities . . . [must] establish that their actions ‘were performed pursuant to a municipal policy or custom.'” Elias v. City of New York, No. 07 Civ. 10260 et al. (TPG), 2009 WL 1528530, at *4 (S.D.N.Y. May 29, 2009) (dismissing complaint with prejudice) (quoting Patterson, 375 F.3d at 226). A municipality may be liable for the actions of a single official, “but only if that official is someone ‘whose edicts or acts may fairly be said to represent official policy' for the entire municipality.” Agosto, 982 F.3d at 98 (quoting Monell, 436 U.S. at 694).
Mitchell does not identify a municipal policy that led to any purported constitutional violation, which is fatal to his Section 1981 claim against Defendant DOE. Mitchell cannot predicate Monell liability on Principal Fontanez's acts of discipline and school administration, because the Second Circuit recognizes that the chancellor of the DOE “appears to be the final policymaker for the [DOE] with respect to teacher discipline and school administration[.]” Agosto, 982 F.3d at 99, 101 (examining New York Education Laws and holding that “a New York City principal does not have municipal policymaking authority for Monell purposes . . .”). Nevertheless, in light of Mitchell's pro se status, the given that Mitchell's opposition brief indicates there are additional facts supporting his claim beyond those included in his complaint, the Court respectfully recommends that the denial of Mitchell's Section 1981 claim predicated on Monell liability be without prejudice. See Moton v. City of New York, No. 15 Civ. 6485 (GBD) (JLC), 2016 WL 3554993, at *3 (S.D.N.Y. June 24, 2016) (dismissing pro se prisoner rights complaint and permitting plaintiff to amend all claims, including his Monell claim under 42 U.S.C. § 1983).
Accordingly, the Court respectfully recommends that Mitchell's Section 1981 claim against Defendant DOE be dismissed without prejudice.
H. Leave to Amend
To the extent that the Court grants Defendants' Motion as to any of his claims, Mitchell seeks leave to file an amended complaint. (ECF No. 22 at 4-5). Mitchell also seeks leave to file an additional Rehabilitation Act claim predicated on the complaints he filed on behalf of special education students within a month of his termination. (Id. at 10). Mitchell's Complaint also alleges that DOE failed to provide him a “Section 3020-a tenure hearing before being taken off payroll in June 2018[, ]” which he alleges amounted to a Due Process violation (ECF No. 2 at 9 ¶ 13), although he does not directly include a cause of action predicated on this allegation (see id. at 3-4), or include sufficient facts in the Complaint for the Court to assess any such claim. Defendants oppose Mitchell's request to amend the Complaint on the ground that any amendment would be futile. (ECF No. 23 at 14-15).
“Leave to amend should be ‘freely give[n] . . . when justice so requires.'” Trujillo, 2016 WL 10703308, at *21 (quoting Fed.R.Civ.P. 15(a)(2)); see Bloomberg v. N.Y.C. Dep't of Educ., 410 F.Supp.3d 608, 628 (S.D.N.Y. 2019) (permitting amended complaint after granting motion to dismiss). The Second Circuit recognizes that “the ‘liberal spirit' of the Federal Rule of Civil Procedure 15 embodies a ‘strong preference for resolving disputes on the merits.'” Davis v. Goodwill Indus. of Greater N.Y. & N.J., Inc., No. 15 Civ. 7710 (ER), 2017 WL 1194686 at *14 (Mar. 30, 2017) (quoting Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190-91 (2d Cir. 2015)).
“District courts ‘ha[ve] broad discretion in determining whether to grant leave to amend.'” Trujillo, 2016 WL 10703308, at *21 (quoting Gurary v. Winehouse, 235 F.3d 793, 801 (2d Cir. 2000)). District courts may properly deny leave to amend if there exists “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (internal citations omitted).
In light of Mitchell's pro se status, in determining whether to recommend that he be granted leave to amend the Complaint, the Court has noted Mitchell's newly-asserted allegations in the Opposition, see Nielsen v. Rabin, 746 F.3d at 63-64, that: (1) he “filed at least five special complaint referrals on behalf of special education students in May and June 2018, and was retaliated against soon after with a discontinuance . . .” (ECF No. 22 at 10); (2) the Youtube Video served to “advocate for the special education students at the school, ” (id.); and (3) Fontanez “was aware of [Mitchell] being part of a successful class action disparate impact racial discrimination case, of which he is a member of the class . . .” (id. at 5-6).
Accordingly, the Court respectfully recommends that Mitchell be granted leave to amend those claims that the Court has determined were inadequately pled, that is, his discrimination claims and retaliation claims under Title VII, the ADEA, Section 1981, the NYSHRL and NYCHRL, as well as his Section 1981 claim against the DOE; permitted to file a claim under Section 504 of the Rehabilitation Act; and denied as to those claims the Court has found are barred for failure to file a notice of claim or for causes of action that prohibit individual liability: his claims against the DOE under the NYSHRL and NYCHRL and his claims against Fontanez under the ADEA and Title VII. As to the last, “[t]he defects in these claims are not the result of ‘inadequate[] or inartful[]' pleading, and are not susceptible to cure.” Trujillo, 2016 WL 10703308, at *21 (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)). Therefore, amendment of these claims would be futile.
IV.CONCLUSION
For the reasons set forth above, the Court respectfully recommends that Defendants' Motion be GRANTED IN PART and DENIED IN PART as follows:
(1) Mitchell's claims under the NYSHRL and NYCHRL against the DOE be DISMISSED WITH PREJUDICE.
(2) Mitchell's claims against Fontanez under the ADEA and Title VII be DISMISSED WITH PREJUDICE.
(3) Mitchell's claims under the ADEA and Title VII, to the extent they are based on discrete acts occurring before June 6, 2018, be DISMISSED WITH PREJUDICE.
(4) Mitchell's Discrimination claims under Title VII, the ADEA, Section 1981, the NYSHRL and the NYCHRL be DISMISSED WITHOUT PREJUDICE.
(5) Mitchell's Retaliation claims under Title VII, the ADEA, Section 1981, the NYSHRL and the NYCHRL be DISMISSED WITHOUT PREJUDICE.
(6) Mitchell's Section 1981 claim against the DOE be DISMISSED WITHOUT PREJUDICE.
The Court further respectfully recommends that Mitchell be granted leave to amend the Complaint with respect to those claims that are dismissed without prejudice.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to The Honorable Paul G. Gardephe.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Mr. Mitchell does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, he may request copies from Defendants' counsel. See Local Civ. R. 7.2.