Opinion
Civil Action 20 Civ. 1555 (PGG) (SLC)
12-12-2022
DWAIN MITCHELL, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION and 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
Before the Court in this employment discrimination action is Defendants' motion to dismiss pro se Plaintiff Dwain Mitchell's amended complaint. (ECF Nos. 39 (the “AC”); 40 (the “Motion”)). For the reasons set forth below, the Court respectfully recommends that the Motion be GRANTED.
Defendants are the New York City Department of Education (“DOE”) and Daisy Fontanez (“Fontanez”), the former Principal of MS 415 Wadleigh Secondary School for Visual and Performing Arts (“Wadleigh”). (ECF No. 2 at 1).
II. BACKGROUND
The factual and procedural background of this action is set forth in the prior decisions of the Honorable Paul G. Gardephe and the undersigned, and is incorporated by reference. See Mitchell v. N.Y.C. Dep't of Educ., No. 20 Civ. 1555 (PGG), 2022 WL 621956 (S.D.N.Y. Mar. 3, 2022) (“Mitchell II”); Mitchell v. N.Y.C. Dep't of Educ., No. 20 Civ. 1555 (PGG) (SLC), 2021 WL 8013770 (S.D.N.Y. May 7, 2021) (“Mitchell I”). The Court discusses the additional background necessary to analyze the Motion.
A. Factual Background
Mitchell is an African American man, aged 69 as of April 2022. (ECF No. 39 at 8 ¶ 1). He began working for the DOE in November 1994, and, beginning in September 2016, began working at Wadleigh, where he taught social studies, photography, and special education, until his termination on June 25, 2018. (Id.) During the 2014-15 and 2015-16 school years, Mitchell was appointed as a full-time substitute teacher “under his social studies license[,]” (id. at 10 ¶ 17), indicating that his status was “probationary” under New York Education Law § 2573(1)(a)(ii).
This statute provides that all teachers appointed after July 1, 2015 are placed on “a probationary period of four years[.]” N.Y. Educ. L. § 2573(1)(a)(ii).
Mitchell alleges that, during the 2016-17 and 2017-18 school years, Fontanez, who is “Spanish[,]” and DOE Superintendent Ilene Altschul (“Altschul”), who is “Caucasian[,]” discriminated against him based on his age and race. (ECF No. 39 at 8 ¶ 3). He contends that, “[a]s [he] approached retirement age, [he] started to receive poor ratings regardless of [his] actual performance, was denied support by [the] administration, and was ultimately terminated in June 2018.” (Id.) He alleges that, “[s]tarting in or about 2017, [] Fontanez and [] Altschul had a pattern of discriminating against men of color in [his] age category to force out older, black[,] more highly compensated teachers[,]” while giving “younger teachers [] tenure” and “hir[ing] younger Hispanic teachers who were in their late 20's to early 30's as replacements.” (Id. at 8 ¶¶ 4-5).
Mitchell alleges the following instances of discrimination and retaliation:
• In Mitchell's Annual Teacher Performance Review for 2016-17, Fontanez rated him “ineffective[,]” which was “inconsistent with the results exhibited by [his] students.” (ECF No. 39 at 9 ¶¶ 9-10). Mitchell filed grievances and appealed his “[i]neffective” rating, and participated in an Appeals Hearing on February 26, 2018, which Fontanez attended by telephone. (Id. ¶ 11; see ECF No. 2 at 8 ¶¶ 8-9).
• In retaliation “for speaking out about [his] classroom and school issues” during October 2017, Mitchell alleges that his “school administration” denied him an “ICT Co-Teacher for [his] social studies class with numerous special education students [], [] [a]dministrative support, [and] help with problem students[.]” (ECF No. 39 at 8 ¶ 7; see ECF No. 2 at 8 ¶ 5).
• Although three of his classes “exceeded the percentage of special education students, thus requiring ICT support for those classes[,]” Mitchell “was not given the support of an additional ICT [t]eacher” in these classes “for the entire 2017[-]18 school year.” (ECF No. 39 at 8 ¶ 8; see ECF No. 2 at 8 ¶ 6).
• Mitchell “was retaliated against for giving sworn testimony to the DOE Office of Special Investigations” (“OSI”) in support of a teacher “who was removed from the school based on . . . allegations of helping students on state administered exams.” (ECF No. 39 at 9 ¶ 13; see ECF No. 2 ¶ 10).
• Mitchell was retaliated against for creating and disseminating a March 18, 2018 YouTube video called “Save Wadleigh[,]” which “demanded [that Wadleigh] remain open and [] Fontanez and [] Altschul be removed [] due to poor management, noncompliant classroom supervision[,] [] lack of special education support, and community outrage with these administrators[,]” whom, he alleges “[u]pon information and belief . . . were removed due to poor management in August 2018.” (ECF No. 39 at 9 ¶ 14 (the “Video”); see ECF No. 2 at 8 ¶ 11).
• Mitchell was retaliated against based on his being “a member of the class” in Gulino v. Bd. of Educ. of City Sch. Dist. of City of N.Y., No. 96 Civ. 8414 (KMW), (S.D.N.Y.) (“Gulino”). (ECF No. 39 at 9 ¶ 12).
• Mitchell was retaliated against for filing “at least five special complaint referrals on behalf of [his] special education students” in May and June of 2018, “less than two months” before he was terminated. (ECF No. 39 at 9 ¶ 15).
Mitchell notes that, during a “discontinuance hearing” on June 25, 2018, “the review panel stated that there was not enough to warrant a discontinuance of [his] service based on [his] actual teaching performance[.]” (ECF No. 39 at 10 ¶ 18). Mitchell does, however, allege that he “was denied due process” when he “was not given a Section 3020-a tenure hearing” before his termination, and asserts that he had “tenure by estoppel” based on his work as a full-time substitute teacher in the 2014-15 and 2015-16 school years. (Id. at 10 ¶ 17; see ECF No. 2 at 9 ¶ 13).
B. Procedural Background
On February 20, 2020, Mitchell filed this action, 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”). (ECF No. 2 (the "Complaint”)).
On March 3, 2022, the Honorable Paul G. Gardephe adopted the Court's recommendation to grant in part and deny in part Defendants' motion to dismiss the Complaint. See Mitchell II, 2022 WL 621956, at *8; Mitchell I, 2021 WL 8013770, at *13. (See ECF No. 13 (the "First MTD”)). Specifically, Judge Gardephe dismissed with prejudice "Mitchell's (1) NYSHRL and NYCHRL claims against the DOE, (2) Title VII and ADEA claims premised on discrete acts occurring before June 6, 2018, and (3) Title VII and ADEA claims against Defendant Fontanez[.]” Mitchell II, 2022 WL 621956, at *8. Judge Gardephe dismissed without prejudice and permitted Mitchell to amend the following claims: (1) discrimination claims under Title VII, the ADEA, Section 1981, the NYSHRL, and the NYCHRL; (2) retaliation claims under Title VII, the ADEA, Section 1981, the NYSHRL, and the NYCHRL; and (3) a municipal liability claim against the DOE under Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978). Id. at *7-8. Judge Gardephe also noted that Mitchell could include in his amended complaint a claim under section 504 of the Rehabilitation Act, 29 U.S.C. § 794(a). Id. at *8.
On April 7, 2022, Mitchell filed the AC, in which he alleges that Defendants terminated his employment and retaliated against him, and asserts race and sex discrimination claims under Title VII (the “Title VII Claims”), a race discrimination claim under Section 1981 (the “Section 1981 Claim”), an age discrimination claim under the ADEA (the “ADEA Claim”), and claims under the NYSHRL and NYCHRL. (ECF No. 39 at 3-4). Mitchell did not mark the Rehabilitation Act as one of the claims he was asserting, (see id.), but as noted above, alleges that he was retaliated against for filing complaints on behalf of his special education students. (Id. at 9 ¶ 15). See Mitchell I, 2021 WL 8013770, at *10 n.8 (noting that advocacy on behalf of special education students may constitute protected activity under the Rehabilitation Act). Attached to the AC are: (1) the charge of discrimination that Mitchell filed on April 2, 2019 with the New York State Division of Human Rights (acting on behalf of the U.S. Equal Opportunity Commission (“EEOC”)) (the “Discrimination Charge”); (2) the EEOC right-to-sue notice (the “EEOC Notice”); and (3) an 18-paragraph addendum elaborating on his claims (the “AC Addendum”). (ECF No. 39 at 8-18).
On April 14, 2022, Defendants filed the Motion, seeking dismissal of Mitchell's AC pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF Nos. 40 - 42-6). On May 27, 2022, Mitchell filed his opposition to the Motion, and on June 9, 2022, Defendants filed their reply. (ECF Nos. 47 (the “Opposition”); 48).
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), aff'd, 696 Fed.Appx. 560 (2d Cir. 2017). In this pro se case, “the Court reads [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 by, 2017 WL 1162908 (S.D.N.Y. Mar. 28, 2017).
All internal citations and quotation marks are omitted from case citations unless otherwise noted.
“‘[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 Federal Rule of Civil Procedure 8(a)'s notice pleading standard apply.” Krasner, 680 F.Supp.2d at 512 (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.'” Krasner, 680 F.Supp.2d at 512 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)).
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[.]"' Krasner, 680 F.Supp.2d at 512 (quoting Twombly, 550 U.S. at 555, 570). 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. 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. 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 Acts, [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. at 113. The Court may therefore consider the Discrimination Charge and the EEOC Notice, which Mitchell attached to the AC. (See ECF No. 39 at 8-18). See Muhammad v. N.Y.C. Transit Auth., 450 F.Supp.2d 198, 204-05 (E.D.N.Y. 2006) (on motion to dismiss where plaintiff referred to filing “grievances” with EEOC and receiving right-to-sue letter, considering plaintiff's “EEOC charges without converting this argument into a motion for summary judgment”).
B. Claims Previously Dismissed With Prejudice
As noted above, Judge Gardephe dismissed with prejudice-meaning that Mitchell could not assert them again-the following claims: “(1) NYSHRL and NYCHRL claims against the DOE, (2) Title VII and ADEA claims premised on discrete acts occurring before June 6, 2018, and (3) Title VII and ADEA claims against Defendant Fontanez[.]” Mitchell II, 2022 WL 621956, at *8. Despite Judge Gardephe's decision, Mitchell continues to assert these dismissed claims in the AC. (ECF No. 39 at 4, 8 ¶ 7 (alleging lack of ICT co-teacher), 9 ¶¶ 10-11 (alleging ineffective rating for 2016-17 school year); see generally id. at 8-10). Consistent with Judge Gardephe's prior ruling, I respectfully recommend that each of these claims again be dismissed with prejudice.
C. Section 1981 Claims
In the AC, Mitchell continues to assert a race discrimination claim under Section 1981. (ECF No. 39 at 4). “In Duplan v. City of New York, however, the Second Circuit held that ‘[Section] 1981 does not provide a separate private right of action against state actors.'” Gonzalez v. City of New York, 377 F.Supp.3d 273, 284 (S.D.N.Y. 2019) (quoting Duplan v. City of New York, 888 F.3d 612, 621 (2d Cir. 2018)). As other courts in this District have recognized, “the Second Circuit reached this conclusion because it found that [42 U.S.C.] § 1983 [(‘Section 1983')] already provided a remedy against state actors and that therefore, ‘there is no reason to infer from the rights-conferring language of [Section] 1981[] that it creates an additional, and duplicative, remedy.'” Gonzalez, 377 F.Supp.3d at 284 (quoting Duplan, 888 F.3d at 620-21).
Since Duplan, courts in this District considering pro se plaintiffs' Section 1981 claims have construed them as asserting Section 1983 claims. See Kuperman v. City of New York, No. 20 Civ. 6834 (LTS) (DCF), 2021 WL 4442855, at *5 (S.D.N.Y. Sept. 28, 2021) (noting that “courts in this District generally construe [S]ection 1981 claims against government entities-especially those brought by pro se plaintiffs-‘as causes of action brought under [Section] 1983,' and ‘discuss whether the claims can survive pursuant to [Section] 1983 caselaw'”) (quoting In re N.Y.C Dep't of Educ., No. 15 Civ. 7150 (AJN), 2019 WL 1433163, at *5 (S.D.N.Y. Mar. 29, 2019); see also Collymore v. City of New York, 767 Fed.Appx. 42, 45 n.2 (2d Cir. 2019) (summary order) (noting that district court correctly construed Section 1981 claims as Section 1983 claims pursuant to Duplan).
“Section 1983 grants a right of action to any ‘citizen of the United States or other person within the jurisdiction thereof' who has been deprived of ‘any rights, privileges, or immunities secured by the Constitution' or federal law by a person acting under color of state law.” Hirsch v. City of New York, 300 F.Supp.3d 501, 508 (S.D.N.Y.) (quoting 42 U.S.C. § 1983), aff'd, 751 Fed.Appx. 111 (2d Cir. 2018); see Pridgen v. Jail, No. 22 Civ. 2294 (ER), 2022 WL 1082411, at *1 (S.D.N.Y. Apr. 6, 2022) (“Section 1983 provides that an action may be maintained against a ‘person' who has deprived another of rights under the ‘Constitution and Laws.'”) (quoting 42 U.S.C. § 1983). To state a Section 1983 claim, “a complaint must allege that the defendant (1) deprived the plaintiff of rights secured by the Constitution and laws of the United States, (2) while acting under color of state law.” Chamberlain v. City of White Plains, 986 F.Supp.2d 363, 381 (S.D.N.Y. 2013) (citing 42 U.S.C. § 1983); see Lurch v. Chaput, No. 16 Civ. 2517 (AT), 2022 WL 889259, at *5 (S.D.N.Y. Mar. 25, 2022) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).
A plaintiff suing a municipal entity under Section 1983 “is required to show that the challenged acts were performed pursuant to a municipal policy or custom[.]” Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 226 (2d Cir. 2004). “A plaintiff can establish an official policy or custom by showing any of the following: (1) a formal policy officially endorsed by the municipality; (2) actions or decisions made by municipal officials with decision-making authority; (3) a practice so persistent and widespread that it constitutes a custom of which policymakers must have been aware; or (4) a failure by policymakers to properly train or supervise their subordinates, such that the policymakers exercised ‘deliberate indifference' to the rights of the plaintiff and others encountering those subordinates.” James v. Borough of Manhattan Cmty. Coll., No. 20 Civ. 10565 (LJL), 2011 WL 5567848, at *11 (S.D.N.Y. Nov. 29, 2021) (quoting McLennon v. City of New York, 171 F.Supp.3d 69, 94 (E.D.N.Y. 2016)).
In Mitchell II, Judge Gardephe held that Mitchell's Section 1981 Monell claim failed for two reasons: first, because “the Complaint does not identify a municipal policy that led to any purported constitutional violation[,]” and second, because “Mitchell cannot predicate Monell liability on [] 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.” 2022 WL 621956, at *7.
Mitchell's Section 1983 Monell claim suffers from the same flaws. Although Mitchell now asserts that Fontanez and Superintendent Altschul “had a pattern of discriminating against men of color in [his] age category to force out older, black[,] more highly compensated teachers[,]” (ECF No. 39 at 8 ¶ 4), this allegation is insufficient to demonstrate that “the acts challenged in this case were performed pursuant to a governmental policy or custom.” Kuperman, 2021 WL 4442855, at *5. First, Mitchell has simply attached the word “pattern” to the same allegations that the Court deemed insufficient to “identify a municipal policy that allegedly caused the constitutional violation.” Mitchell I, 2021 WL 8013770, at *11. (Compare ECF No. 2 at 8 ¶ 4 (“There were five teachers, Ashtok Bhati, Kevin Johnson, Thomas Chirgwin, Gustav Kome, and [Mitchell], who were removed/dismissed/eliminated from teaching at Wadleigh who were age 60 years or older, male, men of color, and earned salaries over $100,000 a year.”) with ECF No. 39 at 8 ¶ 4 (“There were five similarly situated teachers, Ashtok Bhati, Kevin Johnson, Thomas Chirgwin, Gustave Kome, [sic] who were all 60 years old or older[,] male, men of color, and earned salaries over $100,000 a year, were removed, dismissed[,] or eliminated from teaching at Wadleigh in or about the 2016[-]17 school year.”)). This is insufficient to plead a custom or policy required for a Monell claim. Cf. Harvin v. Manhattan & Bronx Surface Transit Op. Auth., 767 Fed.Appx. 123, 127 (2d Cir. 2019) (summary order) (finding that plaintiff's “conclusory assertions [were] insufficient” to plead employment discrimination claim); Kirch v. Liberty Media Corp., 449 F.3d 388, 398 (2d Cir. 2006) (“[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to [defeat] a motion to dismiss.”). Second, neither Fontanez nor Altschul were “final policymaker[s] for the [DOE] for purposes of Monell.” Kuperman, 2021 WL 4442855, at *5; see Agosto v. N.Y.C. Dep't of Educ., 982 F.3d 86, 101 (2d Cir. 2020) (explaining that the chancellor of the DOE is the “final policymaker” for purposes of Monell claims against DOE).
Mitchell's failure to allege that Defendants acted pursuant to a municipal policy or custom is fatal to his ability to state a Section 1983 claim against the DOE as well as Fontanez to the extent Mitchell sues her in her official capacity. See Adenji v. Harman Firm, LLP, No. 19 Civ. 8032 (VSB), 2022 WL 254939, at *8 (S.D.N.Y. Jan. 27, 2022) (dismissing Section 1981 claim construed as Section 1983 claim against municipal entity); see Kuperman, 2021 WL 4442855, at *5 (dismissing Section 1981 claim construed as Section 1983 claim against DOE and principal of school at which plaintiff had worked); Gonzalez, 377 F.Supp.3d at 286-87 (dismissing Section 1983 claims against City and individual defendants in their official capacities for failure to plead policy or custom).
Finally, to the extent Mitchell is attempting to assert a Section 1983 claim against Fontanez in her individual capacity, he was required to allege that she was “personally involved in the alleged deprivation.” Gonzalez, 377 F.Supp.3d at 287; see Littlejohn v. City of New York, 795 F.3d 297, 314 (2d Cir. 2015). The AC, however, fails to allege how Fontanez was “personally involved in the discriminatory decision” to terminate him on June 25, 2018 with the required level of specificity. Gonzalez, 377 F.Supp.3d at 289 (emphasis added). Rather, Mitchell affirmatively alleges that a “review panel” conducted a “discontinuance hearing” on the day he was terminated, but does not allege that Fontanez participated in that hearing or otherwise allege that she made the decision to terminate him. (ECF No. 39 at 10 ¶ 18). Accordingly, Mitchell has also failed to state a Section 1983 claim against Fontanez in her individual capacity. See Gonzalez, 377 F.Supp.3d at 289 (dismissing Section 1983 claims against individual defendants in their individual capacities).
Because Mitchell has failed in the AC to state a plausible Section 1981 claim-construed as a Section 1983 claim pursuant to the Second Circuit's holding in Duplan-against the DOE and Fontanez in either her official or individual capacities, I respectfully recommend that the Motion be GRANTED as to Mitchell's Section 1981 claims.
D. Discrimination Claims
1. Legal standard
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 prohibits age discrimination, making it 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) (emphasis added). The NYSHRL and NYCHRL also prohibit both age and race discrimination. See Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999); N.Y. Exec. L. § 295; N.Y.C. Admin. Code § 8-107.
A plaintiff alleging discrimination in violation of Title VII, the ADEA, and the NYSHRL must allege “sufficient facts to make [his] claim plausible . . . in light of the presumption that arises in plaintiff's favor [under McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)] in the first stage of the litigation.” Littlejohn, 795 F.3d at 310; see Batiste v. City Univ. of N.Y., No. 16 Civ. 3358 (VEC), 2017 WL 2912525, at *11 (S.D.N.Y. July 7, 2017) (noting that Title VII and ADEA claims involve same analysis under Littlejohn); Bermudez v. City of New York, 783 F.Supp.2d 560, 576 (S.D.N.Y. 2011) (noting that Title VII and NYSHRL claims are analyzed under the same framework).
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, 783 F.Supp.2d at 575. He must, with plausible support from “facts alleged in the complaint[,]” allege that he was “a member of a protected class, was qualified, suffered an adverse employment action, and has at least minimal support for the proposition that the employer was motivated by discriminatory intent.” Littlejohn, 795 F.3d at 311.
As courts in the Second Circuit have long recognized, the “ultimate issue in an employment discrimination case is whether the plaintiff has met [his] burden of proving that the adverse employment decision was motivated at least in part by an impermissible reason, i.e., a discriminatory reason.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 87 (2d Cir. 2015); see Corbett v. City of New York, No. 11 Civ. 3549 (CBA) (VMS), 2013 WL 5366397, at *21 (E.D.N.Y. Sept. 24, 2013) (explaining that plaintiff “must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of . . . discriminatory intent”). A plaintiff can meet that burden through direct evidence of intent to discriminate, or by indirectly showing circumstances giving rise to an inference of discrimination. See Vega, 801 F.3d at 87. An inference of discrimination may arise from, for example, “the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge.” Littlejohn, 795 F.3d at 312. “The alleged facts[,]” however, “‘need only give plausible support to a minimal inference of discriminatory motivation.'” Batiste, 2017 WL 2912525, at *7 (quoting Littlejohn, 795 F.3d at 311). A plaintiff's “feelings and perceptions of being discriminated against are not evidence of discrimination.” Bickerstaff v. Vassar Coll., 196 F.3d 435, 456 (2d Cir. 1999) (internal alterations omitted). It is appropriate to dismiss a complaint where the plaintiff fails “to plead any facts that would create an inference that any adverse action taken by any defendant was based upon [a protected characteristic of the plaintiff].” Pantane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007) (per curiam) (original alterations omitted).
In addition, under the ADEA, a 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 v. Christmas Tree Shops, 958 F.Supp.2d 439, 451 (S.D.N.Y. 2013) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180 (2009)), aff'd, 588 Fed.Appx. 15 (2d Cir. 2014); see Lebowitz v. N.Y.C. Dep't of Educ., 407 F.Supp.3d 158, 173 (E.D.N.Y. 2017) (explaining that, “at the motion to dismiss stage, a complaint need not allege that age was the employer's only consideration, but rather that the adverse employment action would not have occurred without it”).
Finally, the Court must analyze Mitchell's NYCHRL discrimination claim against Fontanez “separately and independently from any federal and state law claims,” the interpretation of which “can serve only ‘as a floor below which the [NYCHRL] cannot fall[.]'” Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (quoting Local Civil Rights Restoration Act of 2005 §§ 1, 7). “To state a claim for discrimination under the NYCHRL, a plaintiff need only show differential treatment of any degree based on a discriminatory motive[,]” and neither “a materially adverse employment action, nor severe and pervasive conduct” is required. Lebowitz, 407 F.Supp.3d at 173. “[E]ven under this more liberal pleading standard, a plaintiff must still plausibly allege that he or she was subjected to unequal treatment because of a protected characteristic.” Id. (emphasis added).
2. Application
Defendants challenge only the sufficiency of the fourth element of Mitchell's discrimination claims-discriminatory intent-arguing that the AC “is devoid of any factual allegations that the decision to discontinue [Mitchell] as a probationary teacher was motivated by discrimination” based on “his race, gender, or age.” (ECF No. 41 at 21). Mitchell responds that the AC alleges that as he “approached retirement age, he started to receive poor ratings regardless of his actual performance, was denied support by administration, and was ultimately terminated in June 2018[.]” (ECF No. 47 at 19 (citing ECF No. 39 at 8 ¶ 3)). He also points to his allegations that Fontanez and Altschul “had a pattern of discriminating against men of color in [his] age category to force out older, black[,] more highly compensated teachers.” (Id. at 20 (citing ECF No. 39 at 8 ¶ 4)).
Here, as the Court previously noted with respect to the Complaint, “there are no racial, ethnic, gender, or age-related connections to [Mitchell's alleged] lack of institutional support, performance evaluation, and termination.” Mitchell I, 2021 WL 8013770, at *8; cf. Lebowitz, 407 F.Supp.3d at 173 (denying motion to dismiss where plaintiffs alleged that “age was the but-for cause behind” their discriminatory treatment based on assistant principal's statements that she did not “want any senior teachers” and that similarly situated younger teacher was treated more favorably). The AC does not remedy that deficiency; instead, Mitchell attempts to rely on a disparate treatment theory of discrimination, contrasting the experience of himself and four other “older, black[,] more highly compensated teachers” with that of two “younger teachers [who] were given tenure and continued to work at the school, including Jason Coppola (in his late 20[]s/early 30[]s) and Kirby Mason (20[]s).” (ECF No. 39 at 8 ¶¶ 4-5; see ECF No. 47 at 20-23). In his opposition to the First MTD, however, Mitchell raised this theory (ECF No. 22 at 9), which, the Court explained “would not in itself lead to a contrary outcome, as ‘a plaintiff claiming disparate treatment must allege facts to establish that []he was similarly situated in all material respects to the individuals with whom []he seeks to compare [him]self.'” Mitchell I, 2021 WL 8013770, at *8 & n.7 (quoting Batiste, 2017 WL 2912525, at *9). While he has now included in the AC the names of the two younger teachers, he has not alleged any additional facts concerning their teaching positions, performance reviews, or background from which the Court could plausibly infer that he was “similarly situated in all material respects” to these two individuals. Mitchell I, 2021 WL 8013770, at *8 n.7; see Adams-Flores v. City of New York, No. 18 Civ. 12150 (JMF), 2020 WL 996421, at *5 (S.D.N.Y. Mar. 2, 2020) (finding that plaintiff's failure to provide “any specificity as to [his] alleged comparators qualifications, responsibilities, employment history, and the particulars of” of their treatment was “fatal to [his] claims”); Batiste, 2017 WL 2912525, at *9 (finding that plaintiff “failed to create an inference of discrimination based upon disparate treatment” where she failed to allege comparators' “job descriptions or responsibilities” or their performance); see also Marcus v. Leviton Mfg. Co., 661 Fed.Appx. 29, 32 (2d Cir. 2016) (summary order) (“Without any information as to whether these employees were otherwise similarly situated or the specifics of their conduct, the mere allegation that two other employees-one younger and one similar in age-used profanity without being fired does not give rise to even a minimal inference of age discrimination.”). Mitchell's allegation “upon information and belief” that Fontanez replaced him and the other older teachers with “younger Hispanic teachers” is similarly devoid of facts from which the Court could infer that these individuals were similarly situated to him in all respects. (ECF No. 39 at 8 ¶ 5). See Henderson v. Physician Affiliate Grp. of N.Y. P.C., No. 18 Civ. 3430 (JMF), 2019 WL 3778504, at *5 (S.D.N.Y. Aug. 12, 2019) (holding that information-and-belief allegations, unsupported by details about supposed comparators, failed to support disparate treatment theory of discrimination); see also Lopez v. Advantage Plumbing & Mech. Corp., No. 15 Civ. 4507 (AJN), 2016 WL 1268274, at *4 (S.D.N.Y. Mar. 31, 2016) (noting that “[c]ourts in this district have . . . permitted” allegations “upon information and belief” as to comparators “if plaintiffs provide sufficient identifying details about similarly situated individuals”); cf. Barrett v. Forest Labs, Inc., 39 F.Supp.3d 407, 432 (S.D.N.Y. 2014) (permitting plaintiffs to allege “upon information and belief” that they were paid less than their male co-workers where each plaintiff also “(1) state[d] the amount of her base salary, (2) identifie[d] at least one male comparator, and (3) allege[d] that the comparator received a higher base salary”). Mitchell has therefore failed to plausibly allege race, gender, or age discrimination based on a disparate treatment theory.
Having failed to allege any discriminatory comments based on race, age, or gender that were “causally connected to conduct rising to the level of an adverse employment action,” Henry v. NYC Health & Hosp. Corp., 18 F.Supp.3d 396, 409 (S.D.N.Y. 2014), and having failed to establish discrimination based on a disparate treatment theory, Batiste, 2017 WL 2912525, at *9, *11, Mitchell has failed to plausibly allege a discrimination claim under Title VII, the ADEA, or the NYSHRL. The absence of the requisite causal connection between Mitchell's race, gender, or age is similarly fatal to his NYCHRL claim against Fontanez. See Thomson v. Odyssey House, No. 14 Civ. 3857 (MKB), 2015 WL 5561209, at *24 (E.D.N.Y. Sept. 21, 2015) (dismissing NYCHRL claims for failure to allege discriminatory treatment “because of” a protected characteristic).
Therefore, I respectfully recommend that the Motion be GRANTED as to Mitchell's discrimination claims under Title VII and the ADEA against the DOE, and under the NYSHRL and NYCHRL against Fontanez.
E. Retaliation Claims Under Title VII, ADEA, NYSHRL, and NYCHRL
1. Legal standard
To establish a prima facie retaliation claim, a plaintiff must plausibly allege that: (1) he suffered a “materially adverse” employment action, Patane, 508 F.3d at 112; (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, the NYSHRL, and the NYCHRL are evaluated under this standard. See Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010) (applying analysis to ADEA retaliation claims); Hill v. Rayboy-Brauestein, 467 F.Supp.2d 336, 367 (S.D.N.Y. 2006) (“[NYSHRL] 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 same analysis to NYCHRL retaliation claim).
“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 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)); see, e.g., Patane, 508 F.3d at 116 (deeming plaintiff's allegations that employers failed to assign her work to induce her to quit her job to be 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 that conduct that did not constitute an adverse employment action for discrimination claim did constitute an adverse employment action for retaliation claim).
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). “[T]he 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. See Kumaga, 2010 WL 1444513, at *15.
2. Application
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; see 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 bases of certain statutorily defined protected characteristics.”).
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[.]” 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 AC, the Court construes Mitchell as asserting that the following actions constituted protected activity:
1. “[S]peaking out about [his] classroom and school issues to various administrators and advocating for [his] special needs students, often to special education administrator Denise Faust[,]” about not having an “ICT Co-Teacher for [his] social studies class with numerous special education students in it, no [a]dministrative support, no help with problem students, and . . . no available Dean or Safety Officers at the school.” (ECF No. 39 at 8 ¶ 7; see id. ¶ 8).
2. Filing “APPR grievances” and appealing an unwarranted “[i]neffective” rating for the 2016-17 school year and engaging in “many disagreements” at the subsequent February 26, 2018 Appeals Hearing, which Fontanez attended by telephone. (Id. at 9 ¶¶ 10-11).
3. Being “part of” and “a member of the class” of “a successful class action disparate impact racial discrimination case,” i.e., Gulino. (Id. at 9 ¶ 12).
4. 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. at 9 ¶ 13).
5. Creating the Video, which “demand[ed] [that Wadleigh] remain open and [] Fontanez and [] Altschul be removed from Wadleigh due to poor management, noncompliant classroom supervision and lack of special education support, and community outrage with these administrators.” (Id. at 9 ¶ 14).
6. Filing, in May and June 2018, “at least five special complaint referrals on behalf of [his] special education students to the school administration, as a form of advocating for special needs students.” (Id. at 9 ¶ 15).
The Court concludes that none of these categories constitutes protected activity known to Defendants. As an initial matter, categories 1, 2, 4, and 5 repeat allegations that the Court previously found did not constitute “protected activity known to Defendants[,]” and are similarly insufficient to plead a prima facie retaliation claim. Mitchell I, 2021 WL 8013770, at *11; see Mitchell II, 2022 WL 621956, at *6.
To the extent that Mitchell-in his Opposition, but not in the AC-now seeks to assert a First Amendment retaliation claim based on the Video (ECF No. 47 at 30), such a claim fails as a matter of law for the same reason. See Bartolini v. Cassels, No. 17 Civ. 5671 (NSR) (PED), 2018 WL 3023161, at *8 (S.D.N.Y. June 18, 2018) (“To state a claim for retaliation under the First Amendment, plaintiff must allege (1) that he participated in a protected activity known to the defendant; (2) the defendant took adverse action against him; and (3) a causal connection between the protected activity and the adverse action taken by the defendant.”) (emphasis added) (citing Feingold v. N.Y., 366 F.3d 138, 156 (2d Cir. 2004)).
As to category 3, Mitchell's membership in the Gulino class, Mitchell fails to allege when he became a member of the class, specify what “part” he played in the litigation, or indicate when Fontanez became “aware[.]” (ECF No. 39 at 9 ¶ 12). The conclusory nature of this allegation thus fails to plausibly allege that Fontanez-even if she were a decisionmaker about terminating his employment-knew about Mitchell's “part” in the Gulino case with any temporal proximity to his termination. See Henry, 18 F.Supp.3d at 412 (finding that allegations that “fail[ed] to state with even a modicum of specificity when the relevant events occurred” were insufficient to plead retaliation claims); Winston v. City of New York, No. 12 Civ. 395 (FB) (VVP), 2013 WL 4516097, at *4 (E.D.N.Y. Aug. 23, 2013) (holding that allegations that were “too vague in nature and nonspecific as to time” were insufficient “to serve as a basis for [] retaliation claims”); Time Warner, 2010 WL 846970, at *6 (dismissing retaliation claim where plaintiff failed to allege that “those who were responsible for her termination were aware of her complaint”); Mitchell I, 2021 WL 8013770, at *11 (finding that Mitchell's allegations “fail[ed] to establish protected activity because there is no indication that the decisionmakers responsible for any adverse employment action knew about” his complaints). Furthermore, the docket in Gulino, of which the Court may take judicial notice, see Rosado-Acha v. Red Bull GmbH, No. 15 Civ. 7620 (KPF), 2016 WL 3636672, at *7 (S.D.N.Y. June 29, 2016), reflects that Mitchell did not “join” the Gulino class until October 10, 2019, more than a year after his termination from Wadleigh. (See Gulino v. Bd. of Educ. of the City Sch. Dist. of the City of N.Y., No. 96 Civ. 8414 (KMW), ECF No. 2860 (S.D.N.Y. Oct. 10, 2019)). Mitchell therefore cannot “plausibly plead a causal connection” between his status as a passive member of the Gulino class and his termination, Farooq v. New York City Health & Hosps. Corp., No. 19 Civ. 6294 (JMF), 2020 WL 5018387, at *10 (S.D.N.Y. Aug. 25, 2020), aff'd, 2022 WL 793117 (2d Cir. Mar. 16, 2022), which is the only non-time-barred retaliatory act. See Mitchell I, 2021 WL 8013770, at *6.
Finally, category 6 involves complaints that Mitchell filed on behalf of his students, not himself or other employees, and therefore does not represent a protest about employment “conduct prohibited by Title VII.” Rojas v. Roman Cath. Diocese of Rochester, 660 F.3d 98, 108 (2d Cir. 2011); see Wimmer v. Suffolk Cnty. Police Dep't, 176 F.3d 125, 135 (2d Cir. 1999) (finding that plaintiff's complaint about discriminatory behavior “toward the public” was not a complaint about “the terms and conditions of employment” and therefore was not protected activity); Batiste, 2017 WL 2912525, at *10 (explaining that, to constitute protected activity, “[t]he complaints . . . must be about some act that the employee reasonably and in good faith believes is unlawful under the anti-discrimination laws”).
Once again, Mitchell has failed to plausibly allege that he engaged in any protected activity known to Defendants and causally connected to his termination. Therefore, the Court respectfully recommends that the Motion be GRANTED as to Mitchell's Retaliation Claims under Title VII, the ADEA, the NYSHRL and the NYCHRL.
F. Retaliation Claim Under The Rehabilitation Act
1. Legal Standard
Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of [his or] her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance[.]” 29 U.S.C. § 794(a). This provision protects individuals with disabilities, and “extends its remedies to any person aggrieved by the discrimination of a person on the basis of his or her disability[,]” and the Second Circuit has recognized that “the use of such broad language in the enforcement provisions of the statutes evinces a congressional intention to define standing to bring a private action under [Section] 504 . . . as broadly as is permitted by Article III of the Constitution.” Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 47 (2d Cir. 1997), recognized as superseded on other grounds by Zervos v. Verizon N.Y., Inc., 252 F.3d 163, 171 (2d Cir. 2001). Thus, a teacher who advocates on behalf of his special education students has standing to bring a retaliation claim under the Rehabilitation Act. See Payson v. Bd. of Educ. of Mt. Pleasant Cottage Sch., USFD, No. 14 Civ. 9696 (JCM), 2017 WL 4221455, at *21 (S.D.N.Y. Sept. 20, 2017) (noting that parties did not dispute special education teachers' standing to bring Rehabilitation Act retaliation claims); Stahura-Uhl v. Iroquois Cent. Sch. Dist., 836 F.Supp.2d 132, 143 n.8 (W.D.N.Y. 2011) (same); Felton v. Katonah Lewisboro Sch. Dist., No. 08 Civ. 9340 (SCR), 2009 WL 2223853, at *6 (S.D.N.Y. July 27, 2009) (holding that teachers who advocated on behalf of their special education students had standing to assert Rehabilitation Act standing claims).
“The elements required to state a claim for retaliation under Section 504 of the Rehabilitation Act are similar to the elements [for] a First Amendment retaliation claim[.]” Stahura-Uhl, 836 F.Supp.2d at 143. To allege a prima facie Rehabilitation Act retaliation claim, then, a plaintiff must plausibly allege that “(i) [he] was engaged in protected activity; (ii) the alleged retaliator knew that plaintiff was involved in protected activity; (iii) an adverse decision or course of action was taken against plaintiff; and (iv) a causal connection exists between the protected activity and the adverse action.” Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 148 (2d Cir. 2002). At the pleading stage, a plaintiff's “burden . . . is de minimis.” Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). If the plaintiff establishes a prima facie claim, “the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for the challenged employment decision[,]” following which “the plaintiff must point to evidence that would be sufficient to permit a rational factfinder to conclude that the employer's explanation is merely a pretext for impermissible retaliation.” Id. at 721.
Section 504 does not permit “liability against individually-named defendants sued in their individual capacities.” Payson, 2017 WL 4221455, at *22; see Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001) (holding that Section 504 does not "provide[] for individual capacity suits against state officials”); MC v. Arlington Cent. Sch. Dist., No. 11 Civ. 1835 (CS), 2012 WL 3020087, at *9 n.18 (S.D.N.Y. July 24, 2012) (quoting Garcia). Further, Rehabilitation Act claims against a public official in her official capacity that are identical to and duplicative of the plaintiff's claims against the public entity are also “properly dismissed[.]” Kravtsov v. Town of Greenburgh, No. 10 Civ. 3142 (CS), 2012 WL 2719663, at *9 (S.D.N.Y. July 9, 2012); see Payson, 2017 WL 4221455, at *22 (dismissing official capacity claims against individual defendants that were duplicative of claims against “named governmental entity of which [they] [we]re agents, [which was] the real party in interest”); A.M. ex rel. J.M. v. N.Y.C. Dep't of Educ., 840 F.Supp.2d 660, 678 (E.D.N.Y. 2012) (same), aff'd, 513 Fed.Appx. 95 (2d Cir. 2013).
2. Application
As an initial matter, the Court finds that the AC does seek to assert a Section 504 retaliation claim. Notwithstanding Mitchell's failure to check the box next to “Rehabilitation Act” in the Court's complaint template, he does include in the AC Addendum allegations supporting this claim, just as Judge Gardephe directed him to do. (ECF No. 39 at 4, 9 ¶ 15). See Mitchell II, 2022 WL 621956, at *8. Furthermore, as noted above, the Court is “oblig[ated] to construe” Mitchell's employment discrimination claims "liberallyj.]” Williams, 2017 WL 384787, at *7.
Although Mitchell could have brought “a parallel and concurrent Section 1983 claim under the Rehabilitation Act[,]” he does not appear to have done so, and any such claim would fail for the same reasons as the other Section 1983 claims. Payson, 2017 WL 4221455, at *21 n.35 ("assum[ing] that Plaintiffs brought claims only under the Rehabilitation Act, and did not bring parallel and concurrent claims under Section 1983”). (See § III.C, supra).
Because Mitchell can assert neither an individual capacity nor an official capacity Section 504 retaliation claim against Fontanez, Mitchell's claims against Fontanez fail as a matter of law. See Payson, 2017 WL 4221455, at *22. Accordingly, the Court considers only whether Mitchell has pled a prima facia Section 504 retaliation claim against the DOE.
Defendants challenge only the fourth element of Mitchell's prima facie claim-causal connection-arguing that he “cannot logically claim that he has been retaliated against when Defendants continued a course of conduct which began prior to [his] alleged protected activity.” (ECF No. 48 at 14). Mitchell points out that “[s]hortly after raising these concerns regarding special needs students (less than a month after), [he] was retaliated against with a discontinuance in June 2018.” (ECF No. 47 at 29).
To establish a causal connection for a prima facie Section 504 retaliation claim, “a plaintiff must allege that the protected activity was a substantial motivating factor in the adverse employment action.” Stahura-Uhl, 836 F.Supp.2d at 143 (citing Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Ed., 444 F.3d 158, 167 (2d Cir. 2006)). As in the First Amendment retaliation context, “[a] plaintiff may establish causation indirectly by showing his speech was closely followed in time by the adverse employment decision.” Stahura-Uhl, 836 F.Supp.2d 132, 143 (W.D.N.Y. 2011); see Treglia, 313 F.3d at 720 (“[A] close temporal relationship . . . can be sufficient to establish causation.”). “[C]ourts in this Circuit generally hold that a gap longer than two months severs the inferred causal relationship.” Graham v. Macy's, Inc., No. 14 Civ. 3192 (PAE), 2016 WL 354897, at *9 (S.D.N.Y. Jan. 28, 2016), aff'd, 675 Fed.Appx. 81 (2d Cir. 2017).
Here, Mitchell filed the complaints on behalf of his special education students “[i]n May and June of 2018[,]” and was terminated on June 25, 2018, less than two months later. (ECF No. 39 at 9 ¶ 15). Were this all that the AC indicated, the Court might have concluded that Mitchell had adequately alleged temporal proximity. See, e.g., Payson, 2017 WL 4221455, at *25 (finding that two-month temporal proximity was “sufficient for a reasonable factfinder to find causation”). As noted above, however, long before “May and June of 2018[,]” he “receive[d] poor ratings regardless of [his] actual performance, [and] was denied support by [the] administration,” such as an “ICT co-teacher for [his] social studies class with numerous special education students in it.” (ECF No. 39 at 8 ¶¶ 3, 7-8). The Court finds that these allegations “undermine any inference of causation based on temporal proximity.” Graham, 2016 WL 354897, at *25. The Second Circuit has recognized that, “[w]here timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.” Slattery v. Swiss Reins. Am. Corp., 248 F.3d 87, 95 (2d Cir. 2001), as amended (June 6, 2001); see Saenger v. Montefiore Med. Ctr., 706 F.Supp.2d 494, 519 (S.D.N.Y. 2010) (“A plaintiff fails to allege a sufficient causal connection between protected activity and adverse employment action when the protected activity is preceded by significant misconduct, and the employee's gradual efforts to address that misconduct.”). Because Mitchell alleges-without reference to time or date- unjustified poor ratings and denial of resources well before he “filed at least five special complaint referrals on behalf of [his] special education students” in May and June 2018 (ECF No. 39 at 8 ¶¶ 3, 7, 9 ¶ 15), “the causal connection that might otherwise be inferred based on timing alone is severed.” Graham, 2016 WL 354897, at *9. Further, Mitchell has not alleged any basis for inferring causation other than timing, and therefore, he has not adequately alleged that his complaints on behalf of his special education students “caused” the decision to terminate him from Wadleigh. Id.
Because Mitchell has failed to state a plausible Section 504 retaliation claim, I respectfully recommend that Defendants' Motion be GRANTED as to this claim.
G. Due Process Claim
Mitchell alleges in the AC that he “was denied due process” by not being “given a Section 3020-a tenure hearing before being taken off payroll in June 2018.” (ECF No. 39 at 10 ¶ 17). This allegation, however, is identical to his allegation in the Complaint (ECF No. 2 at 9 ¶ 13), which the Court found did not “include sufficient facts . . . for the Court to assess any such claim.” Mitchell I, 2021 WL 8013770, at *12.
Section 3020-a “governs the procedure of disciplinary proceedings brought against tenured teachers.” Verne v. N.Y.C. Dep't of Educ., No. 21 Civ. 5427 (JPC), 2022 WL 4626533, at *2 n.2 (S.D.N.Y. Sept. 30, 2022) (citing N.Y. Educ. L. § 3020-a).
Based on Mitchell's bare allegation, however, the Court interprets him to be asserting that his termination without a tenure hearing constituted “the loss of a protected property and liberty interest.” Emma v. Schenectady City Sch. Dist., 28 F.Supp.2d 711, 718 (N.D.N.Y. 1998), aff'd, 199 F.3d 1322 (2d Cir. 1999); see Donato v. Plainview-Old Bethpage Cent. Sch. Dist., 96 F.3d 623, 629 (2d Cir. 1996). “To establish a protected property interest, plaintiff must establish a legitimate claim of entitlement to continued employment as a” teacher at Wadleigh. Emma, 28 F.Supp.2d at 718; see Simard v. Bd. of Educ., 473 F.2d 988, 992 (2d Cir. 1973) (noting that a “unilateral expectation” of continued employment is insufficient to create a protected property interest). “Courts have generally held that a teacher or administrator has no legal entitlement claim to tenure during their probationary period.” Emma, 28 F.Supp.2d at 718; see Donato, 96 F.3d at 629 (“New York law provide[s] no basis for [plaintiff] to believe that [he] had a legitimate claim of entitlement to continued employment[.]”).
The AC establishes as a matter of law that Mitchell “was a probationary teacher at the time of his termination[, and] therefore had no Fourteenth Amendment property interest in his position” as is necessary to support a procedural due process claim. Desir v. City of New York, 453 Fed.Appx. 30, 36 (2d Cir. 2011) (summary order) (affirming dismissal of probationary teacher's procedural due process claim); see Segal v. City of New York, 459 F.3d 207, 212 (2d Cir. 2006) (noting that an at-will government employee has no property interest in continued employment and finding that hearing she received provided adequate due process). Accordingly, Defendants' failure to provide a Section 3020-a tenure hearing to someone who was neither tenured nor eligible for tenure fails to state a plausible due process claim. See Emma, 28 F.Supp.2d at 719 (holding that “during [] probationary period, plaintiff had no legal entitlement to tenure such that defendants' failure to confer tenure would give rise to a due process violation”). Furthermore, Mitchell's admission that he participated in a “discontinuance hearing” (ECF No. 39 at 10 ¶ 18), precludes any due process claim based on his termination. See Calhoun v. N.Y.S. Div. of Parole Officers, 999 F.2d 647, 653 (2d Cir. 1993) (“Due process requires, as a general matter, an ‘opportunity to be heard at a meaningful time and in a meaningful manner[.]'”) (quoting Mathews v. Eldridge, 424 U.S. 319, 333 (1976)).
Because Mitchell has failed to plead a plausible due process claim, I respectfully recommend that Defendants' Motion be GRANTED as to this claim.
H. Leave to Amend
To the extent that the Court grants Defendants' Motion as to any of his claims, Mitchell seeks leave to amend his claims yet again. (ECF No. 47 at 32). As the Court previously noted, “[l]eave 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 Mitchell I, 2021 WL 8013770, at *12. The fact, however, that Mitchell “has already had an opportunity to amend, with the benefits of having heard [the defendants'] arguments why his pleading failed to state a claim, mitigates against giving him a third attempt to state a valid claim.” Tsinberg v. N.Y., No. 20 Civ. 749 (PAE) (SLC), 2021 WL 1536659, at *16 (S.D.N.Y. Jan. 22, 2021), adopted by, 2021 WL 1146942 (S.D.N.Y. Mar. 25, 2021); see Green v. Niles, No. 11 Civ. 1349 (PAE), 2012 WL 987473, at *7 (S.D.N.Y. Mar. 23, 2012) (denying leave to amend where plaintiff's amended complaint “was undertaken after [he] had gained a preview of defendants' arguments in support of a motion to dismis[s]” and included at least one amended allegation in response to deficiencies the court had pointed out). Despite the Court's guidance in Mitchell I and Mitchell II, Mitchell has thus far failed to state a claim, and given the Court's analysis of the substantive deficiencies in each of his claims analyzed in this Report and Recommendation, the Court is not persuaded that a third attempt to state a viable claim would be successful. See Brady v. IGS Realty Co. L.P., No. 19 Civ. 10142 (PAE), 2020 WL 5414683, at *13 (S.D.N.Y. Sept. 8, 2020) (denying leave to amend as futile), reconsideration denied, 2020 WL 5960749 (S.D.N.Y. Oct. 8, 2020), aff'd, 2021 WL 4302737 (2d Cir. Sept. 22, 2021), aff'd, 2021 WL 5872264 (2d Cir. Dec. 13, 2021).
In addition, Mitchell has not provided in his Opposition “any proposed amended pleading or indicat[ion of] what [he] might allege to cure the deficienc[ies] identified in the” AC, such that “leave to amend must be denied as futile.” In re WorldCom, Inc. Secs. Litig., 303 F.Supp.2d 385, 391 (S.D.N.Y. 2004); cf. Mitchell I, 2021 WL 8013770, at *8 (including in analysis of retaliation claims “additional facts not alleged in the Complaint” that Mitchell included in opposition to First MTD). Furthermore, courts in this District “routinely deny” granting leave to amend that would allow a plaintiff a “‘third bite at the apple[.]"' Binn v. Bernstein, No. 19 Civ. 6122 (GHW) (SLC), 2020 WL 4550312, at *34 (S.D.N.Y. July 13, 2020) (collecting cases), adopted by, 2020 WL 4547167 (S.D.N.Y. Aug. 6, 2020).
Accordingly, I respectfully recommend that Mitchell be denied further leave to amend.
IV. CONCLUSION
For the reasons set forth above, the Court respectfully recommends that Defendants' Motion be GRANTED and Mitchell's claims be DISMISSED WITH PREJUDICE WITHOUT LEAVE TO AMEND.
Defendants shall promptly serve a copy of this Report and Recommendation on Mitchell and file proof of service by Wednesday, December 13, 2022.
The Clerk of Court is respectfully to mail a copy of this Report and Recommendation to Mitchell.
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 Judge 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 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.