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dismissing breach of contract claim because the DOE regulations were not part of the employment contract
Summary of this case from Biehner v. City of New YorkOpinion
18-CV-5106 (VEC)
02-28-2019
ILANA ROTHBEIN, Plaintiff, v. CITY OF NEW YORK; NEW YORK CITY DEPARTMENT OF EDUCATION; CARMEN FARINA, former Chancellor of The New York City Department of Education; KETLER LOUIS SAINT, New York City Superintendent District 75; JEANNE BRADLEY, Principal P94M/The Spectrum School; JULIA MCCROSSON, Assistant Principal P94M/ The Spectrum School, in their official and individual capacities, RICHARD CARRANZA, Chancellor of The New York City Department of Education, in his official capacity only; Defendants.
OPINION AND ORDER
:
Plaintiff Ilana Rothbein, an occupational therapist formerly employed by the New York City Department of Education ("DOE"), brought this action against DOE, the City of New York, and various DOE employees and officers ("Defendants"), alleging, among other things, that Defendants violated her civil rights under the federal and New York constitutions; conspired to interfere with her civil rights in violation of 42 U.S.C. § 1985(3); discriminated and retaliated against her in violation of the New York State and City Human Rights Laws; and breached and tortiously interfered with an employment contract. See Dkt. 1 (Compl.). Defendants' motion to dismiss Plaintiffs' claims under Fed. R. Civ. P. 12(b)(6), see Dkts. 24-26, is GRANTED IN PART and DENIED IN PART.
BACKGROUND
The Court draws the following factual background from the Complaint and accepts Plaintiff's factual allegations as true. See, e.g., Gibbons v. Malone, 703 F.3d 595, 599 (2d Cir. 2013).
Beginning in October 2013, Plaintiff, an openly gay woman, was employed as a licensed occupational therapist for Defendant DOE at P94M/The Spectrum School ("P94M"). See Dkt. 1 (Compl.) ¶¶ 27-38. In October 2017, following an internal investigation by DOE's Office of Special Investigation ("OSI") into charges that Plaintiff had falsified entries in DOE's electronic recordkeeping system for student services (the "Special Education Student Information System," or "SESIS"), Defendants terminated Plaintiff. See id. ¶¶ 67-91. In a nutshell, after an investigation that Plaintiff characterizes as riddled with procedural irregularities, OSI found that Plaintiff reported having provided therapy services to students on dates and times when, in fact, she was in the school cafeteria not providing the services claimed. See id. ¶¶ 67-91, 114-50. Plaintiff asserts that her termination was wrongful and that she was falsely accused of falsifying SESIS entries. See id. ¶¶ 38-66, 71, 74, 77-79, 86, 97-108.
Consistent with the collective-bargaining agreement between Plaintiff's union, the United Federation of Teachers ("UFT"), and DOE, Plaintiff appealed her termination, attending both a "Step 1" and "Step 2" hearing with her union representative and DOE representatives. Dkt. 1 (Compl.) ¶¶ 93-108. DOE denied Plaintiff's grievance at both steps, id., and the union declined to pursue her grievance to arbitration, id. ¶¶ 109-10.
In June 2018, Plaintiff filed this action, asserting a host of claims under federal, state, and New York City laws against New York City; DOE; DOE's current and former Chancellors; P94M's district superintendent; Jeanne Bradley, P94M's principal; and Julia McCrosson, P94M's assistant principal ("AP"). See Dkt. 1 (Compl.) ¶¶ 6-15, 154-223. Plaintiff seeks reinstatement, compensatory and punitive damages, attorneys' fees, and declaratory relief. Id. ¶¶151-53; id. at 32-33. Defendants moved to dismiss. See Dkts. 24-26.
DISCUSSION
"To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege sufficient facts, taken as true, to state a plausible claim for relief." Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). When considering a Rule 12(b)(6) motion to dismiss, the Court accepts all factual allegations in the complaint as true and draws all reasonable inferences in the light most favorable to the plaintiff. See Gibbons, 703 F.3d at 599. "[T]o survive a motion under Rule 12(b)(6), a complaint does not need to contain detailed or elaborate factual allegations, but only allegations sufficient to raise an entitlement to relief above the speculative level." Keiler v. Harlequin Enters., Ltd., 751 F.3d 64, 70 (2d Cir. 2014) (citation omitted).
I. Defendants' Request That the Court Consider Documents Beyond the Complaint
Defendants ask the Court to consider several documents they included with their motion to dismiss. See generally Dkt. 26 & exs. 1-8; see also Dkt. 25 (Mem. in Supp. of MTD) at 3 n.3; Dkt. 34 (Dec. 27, 2018 letter from Defendants). Plaintiff generally opposes Defendants' request, although she acknowledges that her Complaint does "refer[] to some of the exhibits defendants include with their motion." Dkt. 30 (Mem. in Opp. to MTD) at 2 n.1. Unhelpfully, Plaintiff does not specify which documents, if any, she concedes the Court may properly consider. Id.
In resolving a motion to dismiss, a court ordinarily "must limit" its review "to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference." Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991). "A complaint is deemed to include any written instrument attached to it as an exhibit, . . . materials incorporated in it by reference, . . . and documents that, although not incorporated by reference, are 'integral' to the complaint . . . ." Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)). A document is "integral" to the complaint only where the plaintiff "reli[ed] on the terms and effect of [the] document in drafting the complaint." Chambers, 282 F.3d at 153.
Apart from considering documents referenced in or integral to a complaint, a court may also consider "facts of which judicial notice may properly be taken under Rule 201 of the Federal Rules of Evidence" and, consequently, disregard "allegations in a complaint that contradict or are inconsistent with judicially-noticed facts." Becker v. Cephalon, Inc., No. 14-CV-3864, 2015 WL 5472311, at *3, 5 (S.D.N.Y. Sept. 15, 2015) (internal quotation marks omitted).
For purposes of resolving Defendants' motion to dismiss, the Court will consider the following three documents that Defendants have submitted, along with another document Defendants have not submitted but that Plaintiff relied upon in her Complaint.
Plaintiff does not question the authenticity of any of these documents or assert a "material disputed issue[] of fact regarding the[ir] relevance . . . ," Falkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006).
Because Defendants' other documents are unnecessary to the Court's disposition of Defendants' motion, the Court will not address them.
The Court will consider (1) the DOE OSI's June 8, 2017 Investigative Report regarding Plaintiff and (2) the DOE-UFT CBA in effect when Plaintiff was terminated. See Dkt. 26 exs. 3, 7. Plaintiff relied extensively on both documents, so they are "integral" to the Complaint. Chambers, 282 F.3d at 153; see also Dkt. 1 (Compl.) ¶¶ 67, 71-83, 93, 101, 107-10, 124-26, 135.
Next, the Court takes judicial notice of a petition Plaintiff filed against Defendants in New York County Supreme Court, pursuant to N.Y. C.P.L.R. section 7803, seeking (1) a judgment that Plaintiff's termination violated New York's Civil Service Law, DOE rules, and the DOE-UFT CBA, (2) damages, and (3) reinstatement. See Dkt. 26 ex. 8. The Court notices the petition, however, only for the content of its allegations. See Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998) ("A court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings." (internal quotation marks omitted)); Manta Indus., Ltd. v. TD Bank, N.A., No. 17-CV-2495, 2018 WL 2084167, at *6. Similarly, the Court takes judicial notice of the Supreme Court's order disposing of Plaintiff's petition (to which Plaintiff raised no authenticity objection), but only to the extent it shows that the petition was disposed of. See Dkt. 34 ex. 1.
Finally, because Plaintiff's Complaint "reli[ed] on the terms and effect of" DOE's "Rules and Regulations Governing Non-Pedagogical Administrative Employees," those rules are "integral" to the Complaint, and the Court will consider them in resolving this motion. Chambers, 282 F.3d at 153; see also Dkt. 1 (Compl.) ¶¶ 120-23. The Rules and Regulations—which Defendants did not submit with their motion—are attached to this opinion as Appendix A.
II. New York City's Motion to Dismiss
Defendants contend, and Plaintiff does not contest, that the City of New York is not a proper party to this action because DOE and the City of New York are separate entities, and there are no allegations specific to the City in the Complaint. Dkt. 25 (Mem. in Supp. of MTD) at 23 n.9. The Court agrees and dismisses all claims as against the City. See, e.g., White v. N.Y.C., No. 13-CV-7156, 2014 WL 4357466, at *18-19 (S.D.N.Y. Sept. 3, 2014) (dismissing claims against New York City because it and DOE "remain distinct legal entities" and because "[p]laintiff ha[d] not alleged any facts implicating [City] in the alleged wrongdoing"). Plaintiff will be given leave to amend her Complaint to allege facts that implicate the City in the alleged wrongdoing about which she complains.
III. Plaintiff's Claims Under 42 U.S.C. § 1983
A. Plaintiff's Section 1983 Claims are Dismissed as Against DOE and the Individual Defendants in Their Official Capacities.
It is well settled that a local government is liable under Section 1983 for injuries inflicted by its employees or agents only when the injury is "caused" by the government's policy or custom. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 693-95 (1978); see also, e.g., Pembaur v. City of Cincinnati, 475 U.S. 469, 479 (1986) ("[T]ortious conduct, to be the basis for municipal liability under § 1983, must be pursuant to a municipality's 'official policy' . . . ."). In responding to Defendants' argument that she has failed to plead an official policy or custom upon which her Section 1983 claims against DOE can be founded, see Dkt. 25 (Mem. in Supp. of MTD) at 15-16, Plaintiff expressly disclaimed any reliance on a Monell-type policy, cryptically insisting that she "does not at this stage rely upon a Monell claim against the City but rather on the specific acts and participation alleged on the part of defendant former Chancellor Farina as an actionable basis for [Farina's] liability," Dkt. 30 (Mem. in Opp. to MTD) at 12. Because Plaintiff admits that her Complaint fails to plead the only theory pursuant to which DOE can be liable under Section 1983, her Section 1983 claims are dismissed as against DOE.
Plaintiff's contrary allegation notwithstanding, see Dkt. 1 (Compl.) ¶ 20, DOE cannot be liable under Section 1983 for the individual defendants' conduct on a respondeat superior theory. See Monell, 436 U.S. at 691.
Plaintiff's Section 1983 claims against the individual defendants in their official capacities suffers from the same legal flaw. Monell's "policy or custom" requirement applies as much to a suit against a municipal officer in his or her official capacity as it does to a suit against the municipality itself. See, e.g., Patterson v. Cty. of Oneida, 375 F.3d 206, 226 (2d Cir. 2004) (citing Hafer v. Melo, 502 U.S. 21, 25 (1991) ("[O]fficial-capacity suits generally represent only another way of pleading an action against an entity of which an officer is an agent. . . . Because the real party in interest in an official-capacity suit is the governmental entity and not the named official, the entity's policy or custom must have played a part in the violation of federal law." (internal quotation marks and citations omitted))), superseded in part on other grounds by statute as recognized in Iuorno v. DuPont Pharm. Co., 129 F. App'x 637, 639 n.4 (2d Cir. 2005). The policy-or-custom requirement also applies "irrespective of whether the relief sought is monetary or prospective." L.A. Cty. v. Humphries, 562 U.S. 29, 39 (2010). Thus, having disavowed that she is pursuing a claim premised on a municipal policy or practice, Plaintiff has failed to state a Section 1983 claim against the individual defendants in their official capacities.
B. Counts One and Two are Dismissed as Against the Individual Defendants in Their Personal Capacities.
The Court also dismisses Counts One and Two as against the individual defendants in their personal capacities. Qualified immunity shields a government official from money damages when his conduct did "not violate clearly established statutory or constitutional rights of which a reasonable person would have known." City of Escondido v. Emmons, 139 S. Ct. 500, 503 (2019) (per curiam) (quoting Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (per curiam)); see also, e.g., Davis v. Scherer, 468 U.S. 183, 197 (1984) ("A plaintiff who seeks damages for violation of constitutional or statutory rights may overcome the defendant official's qualified immunity only by showing that those rights were clearly established at the time of the conduct at issue."). While a plaintiff need not identify "a case directly on point" to demonstrate that an asserted federal right was clearly established at the time a defendant acted, the Supreme Court has instructed time and again that "existing precedent must have placed the statutory or constitutional question beyond debate." Mullenix v. Luna, 136 S. Ct. 305, 551 (2015) (per curiam) (emphasis added) (citation omitted); see also, e.g., Emmons, 139 S. Ct. at 504; District of Columbia v. Wesby, 138 S. Ct. 577, 589-90 (2018) ("The rule must be settled law, . . . which means it is dictated by controlling authority or a robust consensus of cases of persuasive authority." (internal quotation marks and citations omitted)); White v. Pauly, 137 S. Ct. 548, 551-52 (2017) (per curiam) ("[G]eneral statements of the law are not inherently incapable of giving fair and clear warning to officers, . . . but in the light of pre-existing law the unlawfulness must be apparent . . . ." (internal quotation marks omitted)). To that end, the Supreme Court has described qualified immunity as a "demanding" doctrine protecting "all but the plainly incompetent or those who knowingly violate the law." Wesby, 138 S. Ct. at 589 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). Moreover, because qualified immunity exists in part "to ensure that insubstantial claims against government officials will be resolved prior to discovery," the Supreme Court has called on courts to "resolv[e] immunity questions at the earliest possible stage in litigation," including on a motion to dismiss. Pearson v. Callahan, 555 U.S. 223, 231-32 (2009) (internal quotation marks, citations, and alterations omitted). To that end, a district court has discretion to decide which of the two prongs of the qualified immunity analysis—whether the plaintiff has alleged a constitutional violation and, if so, whether, at the time of the alleged violation, the right at issue was clearly established—should be addressed first. Id. at 232, 236.
In light of these principles, Plaintiff's vague assertion that "the constitutional rights involved here were clearly established, and were well-known to any reasonable public official prior to plaintiff's unlawful termination," Dkt. 30 (Mem. in Opp. to MTD) at 13, is inadequate. See Pauly, 137 S. Ct. at 552 ("[I]t is again necessary to reiterate the longstanding principle that clearly established law should not be defined at a high level of generality. . . . As this Court explained decades ago, the clearly established law must be particularized to the facts of the case. . . . Otherwise, plaintiffs would be able to convert the rule of qualified immunity into a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights." (internal quotation marks and alterations omitted)).
Heeding the Supreme Court's admonition to "think hard, and then think hard again," before addressing both qualified-immunity prongs, Camreta v. Greene, 563 U.S. 692, 707 (2011), the Court elects to consider the "clearly established" prong only. On that basis alone, the individual defendants are entitled to qualified immunity from damages for Counts One and Two. Both counts allege the deprivation of a constitutionally protected interest without due process: Count One asserts a deprivation of Plaintiff's purported property interest in continued public employment, and Count Two asserts a deprivation of her purported liberty interest in "her good name and reputation." Dkt. 1 (Compl.) ¶¶ 154-72. Even assuming that Plaintiff has the due-process-protected property and liberty interests she describes (questions on which the Court need not and does not express any opinion), Plaintiff has failed to offer—and the Court has been unable to find—any authority that would have placed the purported unlawfulness of the individual defendants' pre-termination conduct "beyond debate," Emmons, 139 S. Ct. at 504 (quoting Wesby, 138 S. Ct. at 581); see also, e.g., Wesby, 138 S. Ct. at 590 ("The rule must be settled law, . . . which means it is dictated by controlling authority or a robust consensus of cases of persuasive authority." (internal quotation marks and citations omitted)).
To the contrary, the pertinent case law appears to bless the pre-termination process Plaintiff received as having satisfied constitutional requirements. Both the Supreme Court and the Second Circuit have described the Fourteenth Amendment's Due Process Clause as requiring only that a "tenured public employee" receive "oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story" before termination. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985); see also Ciambriello v. Cty. of Nassau, 292 F.3d 307, 321 (2d Cir. 2002) ("We hold, therefore, that the process due [the employee] was notice of the charges against him and the opportunity to be heard before demotion.").
Plaintiff alleges that (1) on April 28, 2018, OSI provided Plaintiff with notice that she was the subject of a confidential investigation, see Dkt. 1 (Compl.) ¶ 72; (2) on May 12, 2017, an OSI investigator interviewed Plaintiff, who provided her version of the pertinent events, id. ¶¶ 72-73; (3) Plaintiff was provided with a copy of OSI's resulting report on September 8, 2017, id. ¶ 82; and (4) Plaintiff and a union representative attended a September 28, 2017 "Due Consideration" meeting with a DOE lawyer, during which Plaintiff was again given an opportunity to explain her version of the facts, id. ¶¶ 84, 87. To the extent these procedures were insufficiently rigorous, it is hardly "beyond debate," Emmons, 139 S. Ct. at 504, that they failed to satisfy the Fourteenth Amendment's requirement of "oral or written notice of the charges . . . , an explanation of the employer's evidence, and an opportunity to present [one]'s side of the story," Loudermill, 470 U.S. at 546. Any right to further process—including any right to "legal counsel" or to "presentation or cross examination of witnesses," as Plaintiff suggests, see Dkt. 1 (Compl.) ¶¶ 158—was not clearly established at the time the individual defendants acted.
Plaintiff's Complaint and briefing suggest a variety of other ways in which the pre-termination process afforded her was constitutionally insufficient, but most of those allegations are conclusory and thus to be disregarded. The allegations that are not conclusory are legally inadequate because any federal right Plaintiff might have had to be free from the procedural fouls she alleges was not clearly established in 2017. For example, Plaintiff contends that she was not dismissed in accordance with procedures laid out in the DOE-UFT CBA and DOE guidelines or regulations. See Dkt. 30 (Mem. in Opp. to MTD) at 3-4. Although possibly relevant to her contractual claims, those allegations are irrelevant to her constitutional claims: to the extent the Fourteenth Amendment required compliance with those procedures (a proposition of which the Court is highly skeptical), any constitutional right to such compliance was not clearly established when Plaintiff was fired.
See Dkt. 1 (Compl.) ¶ 140 ("The investigation itself lacked due process."); id. ¶ 141 ("To the extent the investigation was based on vague and unspecific allegations, these allegations were not substantiated."); id. ¶ 143 ("The termination was based on an unprofessional and flawed OSI investigation/OSI report and input from alleged 'witnesses' and biased administrators who were not actual witnesses to the events alleged."); id. ¶ 156 ("Defendant DOE terminated Plaintiff's employment as an occupational therapist without adequate notice or opportunity to be heard."); id. ¶ 159 ("Defendant DOE has refused to provide evidence on which its termination decision was allegedly based."); see also, e.g., Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("[T]he pleading standard Rule 8 announces does not require detailed factual allegations, but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." (internal quotation marks omitted)).
It was also not clearly established in 2017 that Plaintiff had any right to the disclosure of the entirety of the video recording on which OSI relied as evidence that Plaintiff had falsified reports regarding her provision of therapy services. The Complaint alleges that Plaintiff's termination "was based on alleged video evidence" but that "[d]espite plaintiff's numerous requests, including requests filed under the New York Freedom of Information Law, plaintiff has not been provided a copy of the video in its entirety." Dkt. 1 (Compl.) ¶¶ 79, 144. The OSI report described this video footage as having shown plaintiff "sitting in the cafeteria" between "approximately 8:00am to 9:00am" on February 6 and 7, 2017, without ever interacting with the students that Plaintiff reported as having received therapy from Plaintiff on those days and those times. Dkt. 26 ex. 3 (OSI report) at 4. Although it is unclear why the entirety of the allegedly incriminating video footage was not produced, the individual defendants are nevertheless qualifiedly immune from any claim that failing to provide the entire tape violated Plaintiff's right to due process. The pertinent case law is at best ambiguous: the Fourteenth Amendment requires a public employer to provide "an explanation of the employer's evidence," Loudermill, 470 U.S. at 546 (emphasis added)—an obligation that Defendants could reasonably have believed was satisfied by the production of the OSI report. The case law on which Plaintiff relies does not, "beyond debate," Emmons, 139 S. Ct. at 504 (quoting Wesby, 138 S. Ct. at 581), obligate a public employer to produce to a to-be-terminated employee all of its raw evidence. To deny qualified immunity despite the case law's ambiguity would contravene the Supreme Court's repeated admonition that "the clearly established law must be 'particularized' to the facts of the case." Pauly, 137 S. Ct. at 552 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Plaintiffs' cases are, in fact, entirely inapposite. See Dkt. 30 (Mem. in Opp. to MTD) at 5-7 & n.2 (citing Ciambriello, 292 F.3d at 323 (holding only that because the Fourteenth Amendment entitled a public employee to pre-demotion process, he was entitled to "more due process" than the exclusively post-termination process laid out in CBA); Newtown v. N.Y.C., 738 F. Supp. 2d 397, 414 (S.D.N.Y. 2010) (describing a government's general obligation to ensure that its procedures comport with due process); Briecke v. New York, 936 F. Supp. 78, 82 (E.D.N.Y. 1996) (describing prosecutor's obligation to disclose exculpatory evidence in criminal proceeding under Brady v. Maryland, 373 U.S. 83, 87 (1963)); Burka v. N.Y.C. Transit Auth., 739 F. Supp. 814, 843 n.23 (S.D.N.Y. 1990) (suggesting that Transit Authority's use of preponderance standard in adjudicating marijuana-use charges against employees may violate due process if employees lack "adequate means . . . to gain access to evidence to support [their] defense")).
In her briefing, Plaintiff suggests that "Defendants' failure to provide a name-clearing hearing is yet another process violation, as the 'problem code' classification may prevent plaintiff from renewing her license, effectively leading to the suspension of her license." Dkt. 30 (Mem. in Opp. to MTD) at 8. If Plaintiff means to suggest that any of her claims are premised on a denial of adequate post-termination due process, any such theory is absent from her Complaint. Plaintiff may not prop up Counts One and Two, which are based on allegedly inadequate pre-termination process, with unpleaded criticisms of Defendants' post-termination process.
In a similar vein, because the Court dismisses Counts One and Two in their entirety, it need not address Defendants' argument that Plaintiff was provided adequate post-termination process. See Dkt. 25 (Mem. in Supp. of MTD) at 11-12.
Claims One and Two are therefore dismissed against the individual defendants in their personal capacities.
Although qualified immunity shields a defendant from damages liability only, see, e.g., Davis, 468 U.S. at 197, to the extent that Counts One and Two (and Counts Three and Four, for that matter) seek injunctive or declaratory relief against the individual defendants in their personal capacities, those claims must nevertheless be dismissed: such relief "can be obtained only from the defendants in their official capacities, not as private individuals." Feit v. Ward, 886 F.2d 848, 858 (7th Cir. 1989); see also, e.g., Hatfill v. Gonzales, 519 F. Supp. 2d 13, 19-26 (D.D.C. 2007) ("Despite [plaintiff's] attempt to obtain injunctive relief from the individual defendants for the deprivation of his liberty interests . . . , he simply cannot seek that redress from the individual defendants in their personal capacities. Rather, the relief [plaintiff] seeks can only be provided by the government through government employees acting in their official capacities because deprivation of a constitutional right can only be remedied by the government."); Cuyuga Nation v. Zinke, 302 F. Supp. 3d 352, 358-60 (D.D.C. 2018) (citing Hatfill and dismissing personal-capacity claims for injunctive and declaratory relief).
C. Count Three States a Claim Against the Individual Defendants in Their Personal Capacities, and the Court Cannot Hold That They are Entitled to Qualified Immunity at This Stage.
Count Three asserts a Fourteenth Amendment substantive-due-process claim. Defendants' motion to dismiss Count Three as against the individual defendants in their personal capacities is denied. The guarantee of substantive due process "is an outer limit on the legitimacy of governmental action," Natale v. Town of Ridgefield, 170 F.3d 258, 263 (2d Cir. 1999), that protects the individual against the arbitrary and oppressive exercise of government authority, see Cty. of Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998). The Supreme Court has emphasized "that only the most egregious official conduct can be said to be arbitrary in the constitutional sense" and that "the cognizable level of executive abuse of power [is] that which shocks the conscience." Lewis, 523 U.S. at 846 (internal quotation marks omitted). Put differently, "[s]ubstantive due process protects against government action that is arbitrary, conscience-shocking, or oppressive in a constitutional sense, but not against government action that is [merely] incorrect or ill advised." Cunney v. Bd. of Trs., 660 F.3d 612, 626 (2d Cir. 2011) (internal quotation marks omitted). "Nevertheless, malicious and sadistic abuses of power by government officials, intended to oppress or to cause injury and designed for no legitimate government purpose, unquestionably shock the conscience." Velez v. Levy, 401 F.3d 75, 94 (2d Cir. 2005) (internal quotation marks omitted). "This is so because our constitutional notion of due process rests on the bedrock principle that we must protect the individual against the exercise of power without any reasonable justification in the service of a legitimate governmental objective." Id. (internal quotation marks and alteration omitted).
Plaintiff has barely—just barely—pleaded a plausible substantive-due-process claim. Count Three alleges that defendants "violated plaintiff's right to substantive due process by falsely accusing her of failing to provide services to her students and falsifying her entries on SESIS." Dkt. 1 (Compl.) ¶¶ 174-75. Plaintiff's Complaint elsewhere alleges that she "had no disciplinary issues or work issues" at P94M until Defendant McCrosson began working as an assistant principal there, id. ¶ 40; that McCrosson "falsely accused plaintiff of not being with a student during a [therapy] session and falsely accused plaintiff of not sending her schedule to teachers," id. ¶ 42; that Plaintiff reported McCrosson's allegedly false accusations to Defendant Bradley, McCrosson's boss, during a "confidential" meeting and told Bradley that she believed McCrosson was discriminating against her because of her sexual orientation, id. ¶¶ 45-48; and that Bradley nonetheless launched an internal investigation into Plaintiff, justifying the investigation on a false accusation similar to those that McCrosson had made: namely, that Plaintiff had falsely reported providing student services she had not actually provided, see id. ¶ 67. Plaintiff also alleges that she believed her entries into the SESIS record regarding her activities in the school cafeteria on February 6 and 7, 2017 were wholly appropriate and accurate, see id. ¶ 54-66; that on October 6, 2017, two days after her termination from P94M, former coworkers told Plaintiff that Bradley was instructing P94M staff not to communicate with Plaintiff because "she did not leave peacefully," a false allegation, id. ¶ 92; and that a P94M paraprofessional—presumably a former coworker of Plaintiff's—told Plaintiff that Defendant McCrosson disliked Plaintiff, id. ¶ 102. Taking these specific factual allegations as true and drawing all inferences in Plaintiff's favor, Plaintiff's complaint barely raises a fair inference that Defendants waged a campaign to deprive her of her job by intentionally and maliciously fabricating and disseminating falsehoods, Velez, 401 F.3d at 94—precisely the kind of "malicious and sadistic abuse[] of power by government officials, intended to oppress or to cause injury and designed for no legitimate government purpose," that "unquestionably shock[s] the conscience," id. (internal quotation marks omitted). On that theory—and on that theory alone—Count Three states a claim against the individual defendants in their personal capacities for a deprivation of substantive due process.
The Complaint is adequate notwithstanding Defendants' argument that Plaintiff's termination was justified by OSI's investigative conclusion that Plaintiff falsely claimed providing therapy services to certain students when, in fact, she did not. Dkt. 25 (Mem. in Supp. of MTD) at 12-13; see also Dkt. 33 (Reply in Supp. of MTD) at 4-5. On a full factual record, evidence that Plaintiff did, in fact, falsify SESIS reports will likely be fatal to this claim as it would tend to prove that Defendants' termination decision was reasonably justified in the service of a legitimate governmental objective. Velez, 401 F.3d at 94. At this stage of the litigation, however, the Court must credit Plaintiff's specific, factual allegation that Defendants' accusations against her were false and unfounded, see Gibbons, 703 F.3d at 599—in which case her theory that the individual defendants worked maliciously to fire her because of personal animus becomes sufficiently plausible to survive a motion to dismiss.
To clarify the course of future litigation, however, the Court notes three theories on which Plaintiff may not premise her substantive-due-process claim. First, the Court rejects Plaintiff's repeated contention that her firing "shocked the conscience" for substantive-due-process purposes because the alleged misconduct at issue was "significantly less extreme conduct than misconduct engaged in by other DOE employees who received far less punitive discipline." Dkt. 30 (Mem. in Opp. to MTD) at 9-10. The Supreme Court and the Second Circuit have made clear that "where another provision of the Constitution 'provides an explicit textual source of constitutional protection,' a court must assess a plaintiff's claims under that explicit provision and 'not the more generalized notion of substantive due process.'" Conn v. Gabbert, 526 U.S. 286, 293 (1999) (quoting Graham v. Connor, 490 U.S. 386, 395 (1989)); see also, e.g., Velez, 401 F.3d at 94. To the extent Plaintiff premises her substantive-due-process claim on the theory that she was treated differently from similarly situated coworkers without any rational purpose, her claim is properly viewed as a "class of one" claim arising under the Fourteenth Amendment's Equal Protection Clause—a claim the Supreme Court has held "has no place in the public employment context," Engquist v. Or. Dep't of Agric., 553 U.S. 591, 594 (2008).
Similarly, Plaintiff's substantive due process claim is not supported by her observation that "[s]tate courts have found terminations from public employment based on conduct more egregious than plaintiff's to be arbitrary and capricious" under state law. Dkt. 30 (Mem. in Opp. to MTD) at 11. Even if Plaintiff is correct, that is irrelevant: "[s]ubstantive due process . . . does not forbid governmental actions that might fairly be deemed arbitrary or capricious and for that reason correctable in a state court lawsuit seeking review of administrative action," Natale, 170 F.3d at 263. Finally, Plaintiff cannot base Count Three on her contention that her termination was "tainted with fundamental procedural irregularity," Dkt. 30 (Mem. in Opp. to MTD) at 10 (internal quotation marks omitted). Although evidence that Defendants departed from their written procedures may be relevant to prove that they terminated Plaintiff out of malice rather than for any legitimate government purpose, if what Plaintiff is claiming is shocking about Defendants' conduct is that Defendants deprived her of liberty or property without due process, then Plaintiff's substantive-due-process claim is actually a procedural-due-process claim. It would then be subsumed into Counts One and Two, Velez, 401 F.3d at 94, as to which the individual defendants are qualifiedly immune.
To avoid any misunderstanding, the alleged personal animus underlying the surviving substantive-due-process claim cannot be discriminatory animus based on sexual orientation, gender, or some other protected characteristic but must rather be animus driven by sheer personal dislike for Plaintiff not on account of her membership of a protected class. This is because (1) Conn and Velez require this Court to treat a substantive-due-process claim premised on a violation of a more specific constitutional provision as a claim under that more specific provision, (2) a claim alleging discrimination on account of sexual orientation or gender necessarily arises under the Equal Protection Clause and must be treated as a claim under that clause, and (3) any claim that Defendants "treated [Plaintiff] differently from others" but not on account of her membership of a protected class also arises under the Equal Protection Clause and must be treated as an Equal Protection "class of one claim"—a claim unavailable in the public-employment context, Engquist, 553 U.S. at 606. Thus, for Plaintiff's substantive-due-process claim to survive, it (1) must be based on animus against Plaintiff rooted in something other than her membership of a protected class, and (2) it may not be based on allegations that Defendants treated Plaintiff differently from other employees, Velez, 401 F.3d at 94.
The individual defendants are not, however, qualifiedly immune from the barely plausible portion of Plaintiff's substantive-due-process claim. To the extent the individual defendants "require[d] a case directly on point" to know that their alleged conduct was unconstitutional, Mullenix, 136 S. Ct. at 308 (internal quotation marks omitted), the Second Circuit has made clear that public officials may not "intentionally and maliciously fabricate[] and disseminate[] falsehoods in a common effort to deprive [a public employee] of her job" with "no legitimate purpose," Velez, 401 F.3d at 94. Because Count Three alleges just that sort of malicious and oppressive vendetta, the individual defendants are not qualifiedly immune from damages for that claim. See, e.g., Mullenix, 136 S. Ct. at 308 ("[Q]ualified immunity protects all but the plainly incompetent or those who knowingly violate the law." (internal quotation marks omitted)). Defendants may reassert qualified immunity at later phases of the litigation if supported by the facts.
D. Leave to Amend Counts One, Two, and Three
The Court will grant Plaintiff leave to amend Counts One, Two, and Three (1) to state claims against the municipal defendants and the individual defendants in their official capacities and (2) with respect to Counts One and Two, to state claims against the individual defendants in their personal capacities from which they are not qualifiedly immune. Given Plaintiff's disclaimer of any Monell-type policy or procedure (see supra Pt. III(A)) and the state of the case law bearing on the individual defendants' immunity from suit (see supra Pt. III(B)), the Court is skeptical that further amendment of these claims would be beneficial. But because leave to amend should be given "freely," Fed. R. Civ. P. 15(a)(2), the Court will grant it here.
IV. Plaintiff's Section 1985(3) Claim
The Court grants Defendants' motion to dismiss Count Four, which asserts a claim under 42 U.S.C. § 1985(3) for conspiracy to deprive Plaintiff of her Fourteenth Amendment right to equal protection. To plead such a claim, Plaintiff must allege "(1) a conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of equal protection of the laws; (3) an act in furtherance of the conspiracy; (4) whereby a person is deprived of any right of a citizen of the United States." Brown v. City of Oneonta, 221 F.3d 329, 341 (2d Cir. 2000) (internal quotation marks and alterations omitted), abrogated in part on other grounds by Gonzaga Univ. v. Doe, 536 U.S. 273, 287 (2002). With respect to the first and second elements, Plaintiff "must [plead] some factual basis supporting a meeting of the minds, such that defendants entered into an agreement, express or tacit, to achieve the unlawful end." Webb v. Goord, 340 F.3d 105, 110-11 (2d Cir. 2003) (internal quotation marks omitted). Plaintiff has not alleged except in the most conclusory fashion that there was a meeting of the minds among the Defendants to act against her with the specific purpose of depriving her of her right to equal protection. Id. This alone requires that the claim be dismissed.
Because the Court dismisses this claim with prejudice on another ground, it need not resolve whether the claim is also barred by the so-called "intra-corporate conspiracy doctrine," as Defendants contend. See Dkt. 25 (Mem. in Supp. of MTD) at 13-15.
Moreover, Plaintiff's opposition to Defendants' motion to dismiss all but abandons her Section 1985(3) claim. In opposing the motion, Plaintiff indicated that she is prepared to dismiss this claim unless the Court determines that UFT is a necessary party, Dkt. 30 (Mem. in Opp. to MTD) at 21 n.9, an apparent reference to Defendants' contention that Plaintiff's contract claims must be dismissed for failure to name a necessary party, see Dkt. 30 (Mem. in Supp. of MTD) at 22-23. The Court will take Plaintiff up on her offer. Because the Court concludes that UFT is not a necessary party, see infra Pt. IX(c), the Court treats Count Four as abandoned and accordingly dismisses it. And because Plaintiff did not amend her Complaint to shore up a claim that she now concedes is deficient, see Fed. R. Civ. P. 15(a)(1)(B), and because Plaintiff's briefing suggests that Count Four is viable only if a non-party is joined to this litigation (which joinder she herself opposes, see Dkt. 30 (Mem. in Opp. to MTD) at 20-21, and which the Court denies), amending Count Four would be futile. Leave to amend is, therefore, denied.
V. Plaintiff's Claim Under the New York City Human Rights Law
NYCHRL claims must be analyzed "separately and independently from any federal and state law claims." Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109-10 (2d Cir. 2013) (citations omitted).
Both sides acknowledge that Plaintiff's NYCHRL and NYSHRL claims are governed by different standards and must be evaluated separately, see Dkt. 25 (Mem. in Supp. of MTD) at 17; Dkt. 30 (Mem. in Opp. to MTD) at 14, yet neither side's briefing evaluated the claims separately, and both indiscriminately and inexplicably applied Title VII case law to both claims. Going forward, the parties must evaluate Plaintiff's claims separately—as they ask this Court to do—and must cite authorities specific to each type of claim (or, at the very least, identify for the Court the type of claim to which each cited authority relates).
A. NYCHRL Claim for Discrimination
Defendants' motion to dismiss Count Five is granted to the extent it is premised on sexual-orientation discrimination. To prove a claim for such discrimination under the NYCHRL, a "plaintiff need only demonstrate by a preponderance of the evidence that she has been treated less well than other employees because of her [sexual orientation]." Mihalik, 715 F.3d at 109-10 (citing Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 39 (N.Y. App. Div. 2009)); see also, e.g., Raji v. Societe Generale Americas Sec. LLC, No. 15-CV-1144, 2018 WL 1363760, at *4 (S.D.N.Y. Feb. 28, 2018) (applying Williams standard to NYCHRL claims alleging sexual-orientation discrimination). The Second Circuit has warned district courts, however, to "be mindful that the NYCHRL is not a general civility code" and that the "plaintiff still bears the burden of showing that the conduct is caused by a discriminatory motive." Mihalik, 715 F.3d at 110 (internal quotation marks omitted). A plaintiff can raise an inference of a discriminatory motive in a number of ways, including by pleading direct evidence of discrimination—a comment indicating prejudice on account of a protected characteristic, for example, see Raji, 2018 WL 1363760, at *5 —or by pleading specific facts suggesting that other, similarly situated employees outside of the plaintiff's protected class were treated better than the plaintiff, see, e.g., LeBlanc v. United Parcel Serv., No. 11-CV-6983, 2014 WL 1407706, at *15-16 (S.D.N.Y. Apr. 11, 2014).
Count Five alleges in a conclusory fashion that Defendants "created a hostile work environment for plaintiff due to her sexual orientation" in violation of the NYCHRL. Dkt. 1 (Compl.) ¶¶ 194-95. Under the NYCHRL, however, unlike under Title VII and the NYSHRL, there is no distinction between a claim premised on the creation of a hostile work environment (a species of harassment claim) and one premised on unlawful discrimination: the former is subsumed into the latter, and a plaintiff need only prove that "she has been treated less well than other employees because of a protected trait," Johnson v. Strive E. Harlem Emp't Grp., 990 F. Supp. 2d 435, 445 (S.D.N.Y. 2014) (internal quotation marks omitted); see also, e.g., Clarke v. InterContinental Hotels Grp., No. 12-CV-2671, 2013 WL 2358596, at *11 (S.D.N.Y. May 30, 2013) ("Under the NYCHRL, there are not separate standards for 'discrimination' and 'harassment' claims."); Sotomayor v. N.Y.C., 862 F. Supp. 2d 226, 261 (E.D.N.Y. 2012) (citing Williams, 872 N.Y.S.2d at 37) ("Hostile work environment claims are analyzed under the same provision of the NYCHRL as discrimination claims.").
The Complaint fails to raise a plausible inference of discriminatory motive on account of Plaintiff's sexual orientation. The Complaint is entirely devoid of any facts directly evidencing a discriminatory motive on the part of any Defendant—a homophobic slur, for instance, or any other remark or conduct relating to Plaintiff's sexuality. See, e.g., Raji, 2018 WL 1363760, at *5 (holding that plaintiff had raised triable issue of fact relative to defendant's discriminatory motive where evidence showed that defendant had used anti-French slurs and directly asked plaintiff if he was gay). Plaintiff implicitly acknowledges as much, contending that she has stated a plausible discrimination claim under the NYCHRL (and the NYSHRL, for that matter) not because she has pleaded any direct evidence of discriminatory motive but because she has alleged the existence of a similarly situated DOE therapist who was not openly gay and who was not investigated or terminated for falsifying SESIS entries. See Dkt. 30 (Mem. in Opp. to MTD) at 13-14; see also Dkt. 1 (Compl.) ¶ 66 ("Upon information and belief, at least one other therapist made SESIS entries which were demonstrably factually incorrect, such as recording being in the cafeteria when she was not[,] and was not penalized or disciplined.").
Paragraph 41 of the Complaint does allege that McCrosson "subjected [P]laintiff to unfounded allegations, harassment, and disparate and discriminatory treatment because of her sexual orientation." Dkt. 1 (Compl.) ¶ 41. This is nothing more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" which this Court cannot credit as true. Iqbal, 556 U.S. at 678 (internal quotation marks omitted).
Count Five also lists specific "acts of discrimination" on which Plaintiff's NYCHRL claim is based. See Dkt. 1 (Compl.) ¶ 196. All but one—a conclusory allegation that Defendants subjected Plaintiff to a hostile work environment—allege disparate treatment rather than direct evidence of discriminatory motive.
But Plaintiff's disparate-treatment theory is not plausible as pleaded. To raise an inference of discriminatory motive based on Defendants' more favorable treatment of a comparator, Plaintiff must plead facts showing that the comparator was "similarly situated in all material respects"—that is, "subject to the same workplace standards" as Plaintiff and accused of conduct of "comparable seriousness" to that of which Plaintiff was accused. LeBlanc, 2014 WL 1407706, at *15 (citation omitted). The Complaint fails on this score. None of its three references to the alleged comparator even attempts to allege that the comparator was similarly situated to Plaintiff in any, let alone all, material respects. The most factually detailed of these references—the allegation that "another therapist known to AP McCrosson made factually false SESIS entries on February 7, 2017, indicating that she was providing a speech session in the cafeteria when she was in fact outside doing bussing, yet she was neither reported nor investigated, much less terminated"—is alleged only "[u]pon information and belief," id. ¶ 147. The Second Circuit has instructed that, post-Twombly, a plaintiff may plead facts "upon information and belief" only "where the facts are peculiarly within the possession and control of the defendant . . . or where the belief is based on factual information that makes the inference of culpability plausible." Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010). Plaintiff fulfills neither requirement; she fails to explain why information concerning this alleged comparator is "peculiarly within [Defendants'] possession and control," and she fails to allege other facts to support her assertion that this comparator exists and was treated more favorably than Plaintiff for roughly the same misconduct. Id. The Court therefore "has no basis from which to infer that Plaintiff['s] belief" regarding the comparator is anything more "than pure speculation." Ludwig's Drug Store, Inc. v. Forest City Enters., Inc., No. 13-CV-6045, 2016 WL 915102, at *14 (E.D.N.Y. Mar. 4, 2016).
See Dkt. 1 (Compl.) ¶ 48 ("At the meeting, Plaintiff compared AP McCrosson's treatment of her with McCrosson's more favorable treatment of another therapist who was not gay."); id. ¶ 66 ("Upon information and belief, at least one other therapist made SESIS entries which were demonstrably factually incorrect, such as recording being in the cafeteria when she was not[,] and was not penalized or disciplined."); id. ¶ 147 ("Upon information and belief, another therapist known to AP McCrosson made factually false SESIS entries on February 7, 2017, indicating that she was providing a speech session in the cafeteria when she was in fact outside doing bussing, yet she was neither reported nor investigated, much less terminated.").
Therefore, Count Five is dismissed to the extent it asserts a claim for discrimination under the NYCHRL. Leave to amend, however, is granted.
Because the Court grants Plaintiff leave to amend Count Five, the Court takes this occasion to reject Defendants' assertion that the Complaint "does not allege sufficient facts to establish that defendants were aware of plaintiff's sexual orientation." Dkt. 33 (Reply in Supp. of MTD) at 5-6; see also Dkt. 25 (Mem. in Supp. of MTD) at 18 (same). The Complaint alleges that Plaintiff "was the only openly gay employee at P94M/The Spectrum School" and that "Defendants knew that plaintiff is gay." Dkt. 1 (Compl.) ¶¶ 38, 185. While Plaintiff's likelihood of recovering on her discrimination claim is remote without more specific evidence that Defendants were aware of her sexual orientation, drawing all inferences in Plaintiff's favor, it is fair to infer at this stage that because Plaintiff was open about her sexuality, Defendants were aware of it.
B. NYCHRL Claim for Retaliation
Defendants' motion to dismiss Count Five is denied to the extent it asserts a claim of unlawful retaliation under the NYCHRL. To plead such a claim, Plaintiff "must show that she took an action opposing her employer's discrimination . . . and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action." Mihalik, 715 F.3d at 112 (citations omitted). Plaintiff has plausibly pleaded these elements. Plaintiff alleges that on January 9, 2017, she and her union representative met with Bradley, P94M's principal and McCrosson's superior, to "report[] . . . that AP McCrosson was harassing her with unfounded allegations and engaging in discriminatory and disparate treatment." Dkt. 1 (Compl.) ¶ 47. At the meeting, Plaintiff "compared AP McCrosson's treatment of her with McCrosson's more favorable treatment of another therapist who was not gay." Id. ¶ 48. Taking these allegations as true and drawing all inferences in Plaintiff's favor, these averments allege that Plaintiff complained to Bradley about treatment by McCrosson that Plaintiff believed—correctly or incorrectly—was discriminatory on the basis of Plaintiff's sexual orientation. This is adequate to allege "action opposing her employer's discrimination." Mihalik, 715 F.3d at 112.
Defendants contend that Plaintiff's meeting with Bradley cannot qualify as "opposition" because the Complaint "does not allege that plaintiff actually mentioned [the comparator] therapist's sexual orientation (or her own for that matter), nor does it allege that she mentioned her sexual orientation as the perceived basis for [McCrosson's] alleged difference in treatment." Dkt. 33 (Reply in Supp. of MTD) at 7; see also Dkt. 25 (Mem. in Supp. of MTD) at 19-20 (asserting same argument). This argument "slic[es] the baloney mighty thin." Sessions v. Dimaya, 138 S. Ct. 1204, 1215 (2018). While it is true that Plaintiff does not expressly allege that she told Bradley that she believed McCrosson's perceived maltreatment of her was linked to Plaintiff's sexual orientation, Plaintiff does allege that at her meeting with Bradley, she "compared AP McCrosson's treatment of her with McCrosson's more favorable treatment of another therapist who was not gay." Dkt. 1 (Compl.) ¶ 48. While the particulars of who said what to whom will be necessary to survive a motion for summary judgment (let alone to prevail at trial), drawing all inferences in Plaintiff's favor, it is fair to interpret this allegation to mean that Plaintiff identified herself as gay and compared herself to another therapist who was not gay and, in Plaintiff's view, was treated more favorably because of it. (As noted, however, see supra Pt. V(A), this allegation does not plausibly demonstrate that this purported comparator was similarly situated to Plaintiff in all material respects.)
Plaintiff has also plausibly pleaded that she was subjected to adverse actions as a result of her complaint to Bradley. About a month after Plaintiff complained to Bradley, Bradley allegedly initiated an OSI investigation against Plaintiff. See Dkt. 1 (Compl.) ¶ 67. This sequence is sufficient to raise an inference that Defendants acted against Plaintiff "as a result" of her "opposing her employer's discrimination." Mihalik, 715 F.3d at 112; see also, e.g., Albunio v. N.Y.C., 947 N.E.2d 135, 137-38 (N.Y. 2011) (holding evidence sufficient to support jury's finding of NYCHRL retaliation where plaintiff "filed a discrimination complaint," the defendant "knew of the complaint," and sometime "after the complaint was filed, [plaintiff] was subjected to a series of adverse employment actions").
The Court is not persuaded by Defendants' contention that Count Five fails to state a retaliation claim because Bradley triggered the OSI investigation by accusing Plaintiff of the same type of misbehavior that McCrosson had accused her of before Plaintiff's discrimination complaint. See Dkt. 25 (Mem. in Supp. of MTD) at 20; Dkt. 33 (Reply in Supp. of MTD) at 7. Although judgment as a matter of law may be appropriate where a defendant began a continuous course of conduct adverse to the plaintiff before the plaintiff engaged in protected activity, see, e.g., Melman v. Montefiore Med. Ctr., 946 N.Y.S.2d 27, 42 (N.Y. App. Div. 2012), here Plaintiff alleges that Defendants' treatment of her changed in both kind and severity after she complained of perceived discrimination: before she complained, McCrosson had informally reprimanded her for supposedly "not being with a student during a session," see Dkt. 1 (Compl.) ¶ 42; in contrast, after she complained, Bradley initiated a formal OSI investigation of Plaintiff, see id. ¶ 67. The difference between an informal reprimand and becoming the target of an internal disciplinary investigation is significant and would likely have the effect of dissuading a reasonable employee from complaining about perceived discrimination. Thus, the Court rejects Defendants' "continuous course of conduct" theory at this stage.
Therefore, Defendants' motion to dismiss Count Five is denied to the extent it asserts a claim for retaliation in violation of the NYCHRL.
VI. Plaintiff's Claim Under the New York State Human Rights Law
A. NYSHRL Claim for Discrimination
Plaintiff's NYSHRL discrimination claim is analyzed under the Title VII framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012). Because this framework is more demanding of a plaintiff than the NYCHRL's, Defendants' motion to dismiss Plaintiff's NYSHRL discrimination claim is granted for the same reasons it was granted as to Plaintiff's NYCHRL discrimination claim. See, e.g., Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009) ("[C]laims under the City HRL must be reviewed independently from and more liberally than their federal and state counterparts." (internal quotation marks omitted)); cf., e.g., Clarke, 2013 WL 2358596, at *11 n.13 (observing that "federal civil rights laws are a floor below which the [NYCHRL] cannot fall"). Count Six is therefore dismissed to the extent it asserts an NYSHRL discrimination claim. Leave to amend, however, is granted.
B. NYSHRL Claim for Retaliation
Plaintiff's claim for NYSHRL retaliation is also analyzed under the Title VII framework. See, e.g., Christiansen v. Omnicom Grp., 167 F. Supp. 3d 598, 617 (S.D.N.Y. 2016), rev'd in part on other grounds, 852 F.3d 195 (2d Cir. 2017). For this claim to survive a motion to dismiss, Plaintiff "must plausibly allege that: (1) defendants discriminated—or took an adverse employment action—against [her] (2) 'because' [s]he has opposed any unlawful employment practice." Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 90 (2d Cir. 2015). For the same reasons it denied Defendants' motion to dismiss Plaintiff's NYCHRL retaliation claim, the Court also denies their motion to dismiss her NYSHRL retaliation claim. Count Six is plausible to the extent it asserts an NYSHRL retaliation claim.
Defendants have not argued that Plaintiff has failed to plead facts showing "that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer"—that is, "that the desire to retaliate was the but-for cause of the challenged employment action." Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352, 360 (2013). Because the Court will not do Defendants work for them, the Court expresses no opinion on whether Plaintiff has adequately alleged but-for causation, as Title VII, and therefore the NYSHRL, require. Defendants may raise the argument at later phases of the litigation if warranted by the facts.
VII. Plaintiff's Claim Under the New York State Constitution
Defendants' motion to dismiss Count Seven is denied. Count Seven asserts a claim for violations of Plaintiff's rights to due process and to equal protection of the laws under Sections 6 and 11, respectively, of Article I of the New York State Constitution. See N.Y. Const. art. I, § 6 ("No person shall be deprived of life, liberty or property without due process of law."); id. § 11. ("No person shall be denied the equal protection of the laws of this state or any subdivision thereof."). Although Defendants style their motion as one to dismiss the Complaint in its entirety, their briefing in support of the motion entirely fails to address Count Seven, let alone to offer any authority supporting its motion to dismiss. Because "[j]udges are not like pigs, hunting for truffles buried in briefs," United States v. Dunkel, 927 F.3d 955, 956 (7th Cir. 1991), the Court will not dismiss Count Seven.
VIII. Plaintiff's Claim for Retaliation in Violation of New York Civil Service Law Section 75-b
Defendants' motion to dismiss Count Eight, which asserts a claim under Section 75-b(2)(a) of the New York Civil Service Law for unlawful retaliation by a public employer against an employee, is granted. Pursuant to the Civil Service Law, "[w]here an employee is subject to a collective bargaining agreement requiring mandatory arbitration, the employee's Section 75-b(2)(a) claim must be asserted at the arbitration," Verdi v. N.Y.C., 306 F. Supp. 3d 532, 549-50 (S.D.N.Y. 2018) (internal quotation marks omitted), and the employee is barred from "fil[ing] suit in federal court to enforce [her] rights under § 75-b," Healy v. N.Y.C. Dep't of Sanitation, No. 04-CV-7344, 2006 WL 3457702, at *5-7 (S.D.N.Y. Nov. 22, 2006); see also, e.g., Munafo v. Metro. Transp. Auth., Nos. 98-CV-4572, 00-CV-0134, 2003 WL 21799913, at *31 (E.D.N.Y. Jan. 22, 2003) ("An employee may bring suit under § 75-b in a court of competent jurisdiction only where a collective bargaining agreement does not substitute its own grievance procedure for the relief encapsulated by the statute.").
Here, Plaintiff alleges that she was an employee "subject to a collectively negotiated agreement" containing both (1) "provisions preventing an employer from taking adverse personnel actions" and (2) "a final and binding arbitration provision to resolve alleged violations of such provisions." N.Y. Civ. Serv. Law § 75-b(3)(b). Thus, Plaintiff is barred from asserting a claim under Section 75-b(2)(a) in this Court, and Count Eight is dismissed. See Healy, 2006 WL 3457702, at *6; Munafo, 2003 WL 21799913, at *31.
See also Dkt. 26 ex. 7 (DOE-UFT CBA) arts. 17(d)(2) ("The disciplinary process should never be used to retaliate against whistleblowers or for any other illegal reasons."), 18(a)-(c) (requiring that grievances "involving alleged violation of any term of this Agreement" proceed through multiple administrative appeals and then, at UFT's sole discretion, through final and binding arbitration); Dkt. 1 (Compl.) ¶¶ 93 ("On October 6, 2017, plaintiff appealed her termination as per the Collective Bargaining Agreement . . . ."), 110 ("By letter dated April 26, 2018, the UFT notified plaintiff that the union would not appeal her case to arbitration.").
Contrary to Plaintiff's argument, see Dkt. 30 (Mem. in Opp. to MTD) at 23, Seung-Yong Ok v. New York City Department of Education, 18-CV-0392, 2018 WL 2121562, at *3 (E.D.N.Y. May 8, 2018), did not suggest that exhaustion of CBA-provided grievance-and-arbitration procedures is excused where a plaintiff's Section 75-b claim is "factually intertwined" with the plaintiff's accompanying claims under 42 U.S.C. § 1983. Rather, the case suggests that it may be appropriate to stay proceedings on a Section 75-b claim pending resolution of disciplinary proceedings under New York Education Code section 3020-a—proceedings that are not at issue in this case.
Because Plaintiff concedes that she is subject to a CBA whose grievance-and-arbitration provisions displace a civil action under Section 75-b, she "can plead no set of facts that would entitle [her] to relief" under that statute. Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001). Accordingly, leave to amend Count Eight is denied as futile.
IX. Plaintiff's Contract Claims
A. Count Nine: Claim for Breach of Contract
Defendants' motion to dismiss Count Nine, which alleges common-law breach of an employment contract, is granted. "New York . . . recognize[s] an action for breach of contract when plaintiff can show that the employer made its employee aware of an express written policy limiting the right of discharge and the employee detrimentally relied on that policy in accepting employment." Lobosco v. N.Y. Tel. Co./NYNEX, 751 N.E.2d 462, 465 (N.Y. 2001). Under this theory, "[p]olicies in a personnel manual specifying the employer's practices with respect to the employment relationship, including the procedures or grounds for termination, may become a part of the employment contract." Baron v. Port Auth., 271 F.3d 81, 85 (2d Cir. 2001). "To establish that such policies are a part of the employment contract, an employee alleging a breach of implied contract must prove that (1) an express written policy limiting the employer's right of discharge exists, (2) the employer (or one of its authorized representatives) made the employee aware of this policy, and (3) the employee detrimentally relied on the policy in accepting or continuing employment." Id. "[T]his is a difficult pleading burden," and "routinely issued employee manuals, handbooks and policy statements should not lightly be converted into binding employment agreements," id. (internal quotation marks, alterations, and footnote omitted).
At the outset, the Court resolves lingering confusion over the contract Plaintiff alleges Defendants breached—confusion entirely created by the vagueness of Count Nine. See Dkt. 1 (Compl.) ¶¶ 213-16. In her opposition to Defendants' motion, Plaintiff clarified that Count Nine is premised on Defendants' purported breach of DOE rules and policies that she contends formed part of the employment contract between her and DOE. See Dkt. 30 (Mem. in Opp. to MTD) at 18-20. The Court accepts Plaintiff's clarification and therefore rejects Defendants' contention that Count Nine must be dismissed to the extent it is premised on violation of Plaintiff's rights under the DOE-UFT CBA, see Dkt. 25 (Mem. in Supp. of MTD) at 20-22; Dkt. 33 (Reply in Supp. of MTD) at 8.
The Court does not blame Defendants for their (mis)interpretation of Count Nine: the Complaint does allege noncompliance with the CBA, see Dkt. 1 (Compl.) ¶¶ 124-26, 135, 145, although it does not actually assert a claim premised on that alleged noncompliance.
The Court notes that the theory on which Count Nine is premised—the alleged breach of an employment policy that is "implied" into the terms of an employment contract—differs from a claim of breach of an "implied-in-fact" contract, which is one "evidenced by the acts of the parties and not by their verbal or written words," Miller v. Schloss, 218 N.E. 337, 406-07 (N.Y. 1916). Because Plaintiff asserts the former type of claim and not the latter, Defendants' argument that an implied-in-fact contract cannot arise where there is an express agreement on the same topic, see Dkt. 33 (Reply in Supp. of MTD) at 8, is neither here nor there.
Count Nine fails as a matter of law for a multitude of reasons. First, Plaintiff has failed to allege adequately that the purported DOE rules and policies on which she relies—specifically, (1) Section 9.17 of DOE's Rules and Regulations Governing Non-Pedagogical Administrative Employees, (2) certain alleged "OSI Instructions," (3) an unidentified statement allegedly made by "DOE Office of Labor Relations (NYC Schools)," and (4) a "frequently asked questions" document allegedly produced by the same office, see Dkt. 1 (Compl.) ¶¶ 120-23, 127-34—are "part of [her] employment contract" with Defendants, Baron, 271 F.3d at 85. Even if these documents were intended to "limit[] [defendants'] right of discharge," id., which is questionable, Plaintiff altogether fails to allege that any Defendant (or any authorized representative of Defendants) "made [her] aware of" these documents before or during her employment, id. Plaintiff also fails to allege that she "detrimentally relied" on any of these documents "in accepting or continuing employment." Id. Count Nine therefore fails to plead that any limitations these documents may have imposed on Defendants' ability to terminate Plaintiff had "become a part of [her] employment contract." Id.
Section 1 of the DOE Rules and Regulations Governing Non-Pedagogical Administrative Employees, for instance, suggests that those rules may have been superseded by the termination provisions laid out in the DOE-UFT CBA. See App. A § 1.
In her opposition, Plaintiff avers that she "was aware of these policies and relied upon these policies, believing that she was entitled to progressive discipline for any misconduct." Dkt. 30 (Mem. in Opp. to MTD) at 19. Even if true, allegations to this effect are missing from Plaintiff's Complaint, so the Court will not consider them. See Verdi, 306 F. Supp. 3d at 550 n.16. Plaintiff may include factually detailed allegations demonstrating her knowledge and reliance in her Amended Complaint, if she chooses to amend this claim.
Even if Plaintiff had adequately pleaded knowledge and reliance, she has failed to explain why some of the documents she identifies "should . . . be converted into binding employment agreements," Baron, 271 F.3d at 85. The Second Circuit has made clear that Plaintiff's burden of pleading an implied limitation on an employer's right to terminate an employee is a "difficult" one and that routinely issued employee manuals do not magically become binding employment agreements. Id. To the extent Plaintiff premises her contract claim on unidentified "OSI Instructions," a frequently-asked-questions document allegedly produced by the DOE Office of Labor Relations, and another, unidentified statement made by the same office, see Dkt. 1 (Compl.) ¶¶ 127-34, the Complaint lacks sufficient factual detail explaining what these documents and statements are, to whom they were addressed, and how they became an actionable part of Plaintiff's employment contract.
The Court makes one final note regarding Plaintiff's theory that Section 9.17 of the DOE's Rules and Regulations Governing Non-Pedagogical Administrative Employees, see App. A, was a part of her employment contract and obligated Defendants to provide her with certain pre-termination procedures. Plaintiff's Complaint alleges that Section 9.17 "identifies the Administrative Trials Unit" and required some or all of the Defendants to "schedule a Technical Assistance Conference (TAC) with ATU for a complete review of the employee's personnel file and any related discussions," a process that was not followed here. Dkt. 1 (Compl.) ¶¶ 120-23. But Section 9.17, which the Court has held is integral to Plaintiff's Complaint, see supra Pt. I, does not obligate Defendants to provide the ATU-review procedure that Plaintiff alleges she was denied. See App. A § 9.17. If Plaintiff premises her breach-of-contract claim on the fact that Defendants did not schedule a TAC with the ATU, then the claim is not plausibly pleaded.
Because of these defects, Count Nine is dismissed. The Court will, however, grant Plaintiff leave to amend this claim.
B. Count Ten: Claim for Tortious Interference with Contract
Defendants' motion to dismiss Count Ten, which asserts a common-law claim for tortious interference with a contract, is denied. Defendants' only argument is that "DOE, a party to the CBA, cannot be liable for tortious interference with that very contract." Dkt. 33 (Reply in Supp. of MTD) at 9-10; see also Dkt. 25 (Mem. in Supp. of MTD) at 22 n.7 (same argument). This argument misunderstands Plaintiff's claim, which rests not on any purported interference with her rights under the DOE-UFT CBA but rather on alleged interference with her rights under her employment contract with DOE. See Dkt. 1 (Compl.) ¶¶ 217-23 ("In their actions, the individual defendants intentionally and/or recklessly interfered with and/or caused the breach of plaintiff's employment contract with the DOE."). More importantly, Count Ten is against the individual defendants only, who were parties to neither the CBA nor Plaintiff's alleged contract with DOE. See id. Defendants' argument as to DOE is, therefore, denied as moot.
In denying Defendants' request that this claim be dismissed as against DOE, the Court does not express any opinion on whether Count Ten adequately states a claim against the individual defendants. Because Defendants have failed to marshal any argument to this effect, the Court has no basis on which to rule.
C. Defendants' Contention That UFT is a Necessary Party
Because neither Count Nine nor Count Ten is premised on a violation of Plaintiff's rights under the DOE-UFT CBA, the Court rejects Defendants' argument that those claims "must be dismissed for failure to name a necessary party," namely UFT. Dkt. 25 (Mem. in Opp. to MTD) at 22-23 (capitalization altered). This argument, as Defendants acknowledge, is contingent on "the extent [to which] plaintiff is still basing her breach or tortious interference claims on the CBA." Dkt. 33 (Reply in Supp. of MTD) at 8-9. As Plaintiff has disclaimed any cause of action based on a violation of or interference with her rights under the CBA, Defendants' joinder argument is moot.
Counsel for defendants is advised to cite and apply federal law governing joinder of parties rather than state law when litigating in federal court. See Dkt. 25 (Mem. in Supp. of MTD) at 22-23 (citing N.Y. C.P.LR. section 1003 and state cases interpreting it).
X. Defendants' Requests for a Stay and for Issue Preclusion
In their motion to dismiss, Defendants requested that the Court stay proceedings in this case pending the Supreme Court's disposition of Plaintiff's N.Y. C.P.L.R. section 7803 petition. See Dkt. 25 (Mem. in Supp. of MTD) at 23-24. Because the Supreme Court resolved Plaintiff's petition on November 26, 2018, see Dkt. 34 ex. 1, the request for a stay is denied as moot.
In a December 27, 2018 letter, Defendants contend that Plaintiff is precluded from relitigating in this Court the two issues that Defendants argue the Supreme Court decided in disposing of Plaintiff's petition: (1) that New York law barred Plaintiff's petition because she failed to exhaust the DOE-UFT CBA's three-step review procedure for termination decisions, and (2) that the statute of limitations barred any attempt to amend the petition to add UFT as a party. See Dkt. 34 at 2. Because neither of these purported holdings by the Supreme Court bears on the disposition of Defendants' motion to dismiss, the Court need not resolve their preclusive effect in this Court at this stage. Defendants remain free to renew their preclusion argument at later stages of the litigation should that be appropriate and warranted by the facts.
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss [Dkts. 24-26] is GRANTED IN PART and DENIED IN PART. Specifically,
• The City of New York's motion to dismiss the Complaint is GRANTED. All counts except Counts Four and Eight are dismissed without prejudice. Counts Four and Eight are dismissed with prejudice.
• Defendants' motion to dismiss Counts One, Two, and Nine is GRANTED; those counts are dismissed without prejudice.
• Defendants' motion to dismiss DOE and the individual Defendants in their official capacities from Count Three is GRANTED. Count Three is dismissed as against DOE and the official-capacity Defendants without prejudice. Defendants' motion to dismiss Count Three as again the individuals in their personal capacities is DENIED.
• Defendants' motion to dismiss Counts Four and Eight is GRANTED. Counts Four and Eight are dismissed with prejudice.
• Defendants' motion to dismiss Counts Five and Six are GRANTED as to the discrimination claims and DENIED as to the retaliation claims. As to the discrimination claims, Count Five and Six are dismissed without prejudice.
• Defendants' motion to dismiss Count Seven is DENIED.
• Defendants' motion to dismiss Count Ten is DENIED.
Regarding the claims that have been dismissed without prejudice, Plaintiff may, if she wishes, amend her Complaint to correct the deficiencies identified above. Plaintiff must file her Amended Complaint, if any, no later than March 29, 2019. Any Amended Complaint must be accompanied by a redline version of the Amended Complaint showing differences between that document and the Complaint. If Plaintiff does not wish to file an Amended Complaint, she must submit a letter no later than March 29, 2019 advising the Court of that fact.
In any case, the parties must appear for an initial pre-trial conference on March 22, 2019 at 10:00 a.m. No later than March 14, 2019, the parties must submit a joint pre-conference letter and a jointly proposed case-management plan as described in Paragraphs 2 and 3 of the Notice of Initial Pretrial Conference [Dkt. 27].
If Plaintiff files an Amended Complaint, Defendants must move against or answer the Amended Complaint no later than April 26, 2019. Plaintiffs' opposition to any motion (or a letter notifying the Court of an intent not to oppose the motion) is due no later than May 17, 2019. Defendants' reply in support of their motion, if any, is due no later than May 24, 2019.
SO ORDERED.
Date: February 28, 2019
New York, New York
/s/ _________
VALERIE CAPRONI
United States District Judge
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