Opinion
Civil Action 19 Civ. 4335 (PGG) (SLC)
07-26-2021
PATRICIA SI LVA-MARKUS, Plaintiff, v. NEW YORK CITY DEPARTMENT OF EDUCATION; TILSA RODRIGUEZ-GONZALEZ, in her Official and Individual Capacity as PRINCIPAL OF THE HIGH SCHOOL FOR CONTEMPORARY ARTS, Defendants.
HONORABLE PAUL G. GARDEPHE, United States District Judge.
REPORT AND RECOMMENDATION
SARAH L. CAVE Magistrate Judge.
I. INTRODUCTION
Plaintiff Patricia Silva-Markus ("Silva") brings this action against New York City Department of Education ("DOE") and Tilsa Rodriguez-Gonzalez ("Rodriguez-Gonzalez," together with DOE, "Defendants"), asserting claims under the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y. Charter & Admin. Code § 8-101 et seq.
The Honorable Paul G. Gardephe granted Defendants' motion to dismiss Silva's original complaint on the grounds that all of Silva's claims were either time-barred or otherwise failed to plead a claim on which relief may be granted. See Silva-Markus v. N.Y.C. Dep't of Educ, 19 Civ. 4335 (PGG), 2020 WL 5819555, at *1 (S.D.N.Y. Sept. 30, 2020) (the "Dismissal Order").
Silva now moves for leave to file a First Amended Complaint (the "FAC" (ECF No. 35-1)) (the "Motion" (ECF No. 35)). Defendants oppose the Motion (the "Opposition" (ECF No. 41)). For the reasons set forth below, I respectfully recommend that the Motion be DENIED.
II. BACKGROUND
A. Factual Backfiround
The Court assumes familiarity with, and incorporates by reference, the factual and procedural background of this action set forth in the Dismissal Order. See Silva-Markus, 2020 WL 5819555, at *l-4. The Court sets forth the information from the Dismissal Order and the FAC relevant to resolution of the Motion.
Silva is a 60-year-old former employee of the DOE. (ECF No. 35-1 ¶¶ 7, 8). Her last permanent position was as a Bilingual Guidance Counselor at the High School for Contemporary Arts (the "High School") in the Bronx, New York. (Id. ¶ 1, 6). In December 2014, Rodriguez-Gonzalez became the Principal of the High School. (Id. ¶ 12). Silva alleges that Rodriguez-Gonzalez "[immediately upon arriving at the High School . . . began harassing [Silva] based on [her] age." (Id. ¶ 13). On July 30, 2015, Silva, then a guidance counselor at the High School, learned that she had been "'excessed' and placed into the Absent Teacher Reserve (ATR) pool, in which she remained until her retirement in June 2016. (Id. ¶¶ 7, 100). "[E]xcessing occurs when a school reduces the size of its faculty, such as when it experiences an unexpected drop in student enrollment, loses a budget line or is being closed, redesigned or phased out." (Id. ¶ 101 (internal quotation removed)). As a result, Silva was no longer assigned to a single school and "[s]ome of her assignments required her to pay for parking out of pocket, which she was not required to do at her previous school, and she was not given any work [relating to] her bilingual counselor license area as an ATR." (Id. ¶ 107).
Although the FAC alleges that Silva is 58 years old, assuming the truth of other allegations in the FAC, she appears to be 60 years old at present. (ECF No. 35-1 ¶ 8).
Silva was assigned to approximately six to eight schools during the 2015-16 school year. (ECF No. 35-1 ¶ 107). Between March and June of 2015, Rodriguez-Gonzalez "issued at least five disciplinary notices to" Silva, none of which, Silva claims, "was substantiated or resulted in any disciplinary actions against her." (Id. ¶ 87). Silva alleges that these notices were meant to leave "enough of a paper trail to support an annual U-rating for the 2014-2015 school year." (Id.) In June 2015, Rodriguez-Gonzalez issued Silva a "U" rating for the 2014-15 school year. (Id. ¶ 88). On receiving the "U" rating, Silva "was automatically prevented from getting compensated for per session or summer work, and it would have been futile even if she tried for such extra compensable work," thus creating an "automatic adverse impact" on her career. (Id. ¶ 100).
Counselors in the ATR pool are also "entitled to interview for permanent placements] where vacancies become available; however, having received an annual U-rating for the 2014-2015 school year," Silva became a less-desirable candidate for such placements. (ECF No. 35-1 ¶ 108). Silva claims she was not made aware of the annual "U" rating until February 10, 2016, when she was notified by her union. (Id. ¶ 100). She "retired in June 2016 while in the [ATR] pool," and, given her "U" rating, was unable to become a "per diem substitute." (Id. ¶¶ 7, 108). Silva had been planning to retire after working 32 years with the DOE "in order to maximize her pension." (Id. ¶ 109). Because of her placement in the ATR pool, she retired before meeting this goal. (Id.)
In the FAC, Silva asserts claims for discrimination, hostile work environment, constructive discharge, and retaliation under the ADEA, NYSHRL, and NYCHRL. (ECF No. 35-1 ¶¶ 123-28). Silva alleges that the discrimination, retaliation, excessing, and ATR status caused her emotional distress which forced her to retire before she could fully vest her pension at 32 years. (ECF No. 35-1 ¶ 109). Silva alleges that Defendants' actions adversely affected her earnings during her employment and will continue to impact her earnings throughout her retirement. (Id. ¶ 111). Silva seeks a declaratory judgment that Defendants are in violation of the ADEA, NYSHRL, and NYCHRL, and an award of compensatory and punitive damages, and attorneys' fees and costs. (ECF No. 35-1 at 22-23).
B. Procedural Background
On February 8, 2016, Silva filed a notice of claim against the DOE. Silva-Markus, 2020 WL 5819555, at *4. (ECF No. 35-1 ¶ 120). On April 26, 2016, Silva filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC") alleging age-based discrimination and retaliation. Silva-Markus, 2020 WL 5819555, at *4. (ECF No. 35-1 ¶ 119). "[T]he EEOC issued a reasonable cause finding on December 19, 2018," and "a right to sue letter on February 13, 2019." Silva-Markus, 2020 WL 5819555, at *4. (ECF No. 35-1 ¶¶ 121-22).
On May 13, 2019, Silva filed the Complaint. (ECF No. 1). On November 15, 2019, Defendants filed the Motion to Dismiss. (ECF No. 32). On September 30, 2020, Judge Gardephe granted the Motion to Dismiss as to all of Silva's claims, granting her until October 14, 2020, to file a motion for leave to amend. See Silva-Markus, 2020 WL 5819555, at *11.
On October 14, 2020, Silva filed the Motion, accompanied by the FAC. (ECF Nos. 35; 35-1). On November 6, 2020, Defendants filed the Opposition. (ECF No. 41). On November 27, 2020, Silva filed her reply ("Response" (ECF No. 40)). On May 22, 2021, Judge Gardephe referred the Motion for a Report and Recommendation. (ECF No. 42).
III. DISCUSSION
A. Legal Standard
Federal Rule of Civil Procedure 15 provides that a court "should freely give leave" to amend a pleading "when justice so requires." Fed.R.Civ.P. 15(a)(2). The Rule encourages courts to determine claims "on the merits" rather than disposing of claims or defenses based on "mere technicalities." Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 283 (2d Cir. 2000). The Second Circuit has explained that "district courts should not deny leave [to amend] unless there is a substantial reason to do so, such as excessive delay, prejudice to the opposing party, or futility." Friedl v. City of New York, 210 F.3d 79, 87 (2d Cir. 2000). Courts in this District have held that denial of a motion to amend is appropriate where "(1) the movant is guilty of undue delay, (2) the movant has acted in bad faith, (3) the amendment would be futile, or (4) the amendment would prejudice the opposing party." Procter & Gamble Co. v. Hello Prods., LLC, No. 14 Civ. 649 (VM) (RLE), 2015 WL 2408523, at *1 (S.D.N.Y. May 20, 2015) (citing State Tchrs. Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981)); see Williams v. Citigroup Inc., 659 F.3d 208, 213-14 (2d Cir. 2011) (per curiam) (reiterating Supreme Court precedent explaining proper grounds for denying motion to amend as "undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment").
While a party may move to amend under Rule 15(a)(2) at any stage of a litigation, when "a proposed amendment is based on 'information that the party knew or should have known prior to the deadline [to file an amendment], leave to amend is properly denied.'" Hvo Jung v. Chorus Music Studio, Inc., No. 13 Civ. 1494 (CM) (RLE), 2014 WL 4493795, at *2 (S.D.N.Y. Sept. 11, 2014) (citing Soroof Trading Dev. Co. v. GE Microgen, Inc., 283 F.R.D. 142, 147 (S.D.N.Y. 2012)); see Procter & Gamble Co., 2015 WL 2408523, at *2-3 (finding undue delay and prejudice where party was aware of information well before deadline to amend pleadings but waited ten months to move to amend).
Prejudice occurs when an amendment would "(i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from bringing a timely action in another jurisdiction." Soroof Trading, 283 F.R.D. at 147 (citing Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993)).
An amendment is futile if it would not survive dismissal under Rule 12(b)(6) because it fails to "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Brodt v. City of New York, 4. F.Supp.3d 562, 567 (S.D.N.Y. 2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Facial plausibility exists when the plaintiff pleads "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
B. ADEA
The ADEA provides that "[i]t shall be unlawful for an employer ... to discharge any individual or otherwise discriminate against any individual . . . because of such individual's age." 29 U.S.C. § 623(a)(1). The Court will first analyze the timeliness of Silva's proposed ADEA claims before assessing whether her proposed amendments would be futile.
1. Statute of Limitations
a. Legal standard
The ADEA requires that a complainant file an ADEA charge with the EEOC within 300 days of the alleged discriminatory action. See Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 328 (2d Cir. 1999) (citing 29 U.S.C. § 626(d)). Discrete discriminatory acts, such as termination or failure to promote "are not actionable if time barred." Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 79 (2d Cir. 2015) (quoting Nat'l R.R. Passenger Corp. v. Morgan. 536 U.S. 101, 113 (2002)). When a plaintiff alleges a discrete act of employment discrimination, "each act triggers the running of the limitations period." Williams v. N.Y.C. Dep't of Educ, No. 17 Civ. 1996 (AJN), 2018 WL 4735713, at *5 (S.D.N.Y. Sept. 29, 2018). By contrast, when a plaintiff alleges a continuing violation or ongoing practice such as a hostile work environment, she "need only show that part of the violation took place within the limitations period." Id. (citation omitted); see Vega, 801 F.3d at 79-80 (holding that although discrete actions before 2009 were time-barred, a plaintiff's assertion that, beginning around 2008 he began to receive extra work on a discriminatory basis, suggested an ongoing practice and was therefore not untimely).
b. The Dismissal Order
In the Dismissal Order, Judge Gardephe found that because Silva filed her charge of discrimination with the EEOC on April 26, 2016, all acts occurring more than 300 days before April 26, 2016 - i.e., before July 1, 2015 - were outside the statutory period. Silva-Markus, 2020 WL 5819555, at *6. The only actions that fell within the statutory period were Silva's "excessing" from her employment on July 30, 2015, her ATR placement in September 2015, her "U" rating, and her constructive discharge in June 2016. Id. The "U" rating, Judge Gardephe noted, was "less straightforward" because it was issued in June 2015. Id. Assuming that Silva did not learn of this rating until February 2016, however, Judge Gardephe deemed the "U" rating timely. Id.
c. Application
The FAC does not add new allegedly discriminatory or retaliatory events within the statutory period. (See ECF No. 35-1). The pre-July 1, 2015 allegations are identical to those in the Complaint. (Compare ECF No. 1 ¶¶ 12-93, with 35-1 at ¶ 12-93). As Judge Gardephe held in the Dismissal Order, these events, which include the disciplinary notices that Silva argues created a "paper trail" for her eventual "U" rating, are therefore time-barred. Silva-Markus, 2020 WL 5819555, at *6. (See ECF Nos. 35-1 ¶ 87; 40 at 9).
Silva claims to not have been informed of the "U" rating until February 2016, which is within the statutory period. (ECF No. 35-1 ¶ 100). Therefore, as stated in the Dismissal Order, the Court also deems the "U" rating as timely for purposes of the Motion.
Accordingly, the Court deems only the "excessing," ATR placement, "U" rating, and constructive discharge allegations as timely.
2. Discrimination
a. Legal standard
To state a claim for discrimination under the ADEA, "a plaintiff must plausibly allege that she 'is 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.'" Luka v. Bard Coll., 263 F.Supp.3d 478, 484-85 (S.D.N.Y. 2017) (quoting Littleiohn v. City of New York. 795 F.3d 297, 311 (2d Cir. 2015)). An ADEA plaintiff must also plausibly allege "that age was the but-for cause of the employer's adverse decision." Vega, 801 F.3d at 86 (quoting Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009) (internal quotation marks omitted)).
b. The Dismissal Order
Judge Gardephe found that Silva did not plausibly allege a discrimination claim under the ADEA because the "excessing," ATR placement, and "U" rating were not adverse employment actions. Silva-Markus, 2020 WL 5819555, at *8. These events were "discrete acts" that were not sufficient to state a claim under the ADEA. Id. at *6.
c. Silva's arfiuments
In her FAC and Response, Silva argues that the "U" rating for her 2014-15 school year created "automatic negative economic consequences tied to that rating," which "constitute an adverse action for purposes of a discrimination claim." (ECF No. 40 at 9). She contends that, even though she was not aware of the "U" rating until February 10, 2016, it "prevented [her] from getting compensated for per session or summer work, and it would have been futile even if she tried for such extra compensable work." (ECF No. 35-1 ¶ 100). In addition, after Silva was placed in the ATR pool with a "U" rating, she contends that she became an undesirable candidate for permanent positions and was barred from serving as a per-diem substitute. (Id.¶ 108; ECF No. 40 at 10).
d. Defendants' arfiuments
Defendants argue that the FAC fails to cure the defects Judge Gardephe found in the Dismissal Order. (ECF No. 41 at 11). Defendants state that although Silva alleges her "U" rating made securing substitute and permanent positions difficult, this does not create a "material change [] in her working conditions to constitute an adverse action." (Id. at 12). Defendants also note that Silva was not damaged by the "U" rating because she does not allege that she applied for, and was denied, a position while she was employed under ATR status. (Id.) In addition, Defendants argue that her assignment to ATR does not constitute an adverse action, or change her work experience. (Id. at 12-13). Such allegations as having to pay for parking and receiving no assignments as a bilingual-guidance counselor also do not represent "material change[s] in the condition of her employment." (Id. at 13).
e. Application
i. Adverse action
In her Response and FAC, Silva argues that there were automatic negative consequences of the "U" rating in conjunction with her "excessing" and ATR status. (See ECF Nos. 40; 35-1). Although she needed to provide only "minimal support for the proposition that [Defendants were] motivated by discriminatory intent," the Court finds that "she has fallen short of meeting this low burden." Luka, 263 F.Supp.3d at 485 (quoting Littlejohn, 795 F.3d at 311).
In Vega v. Hempstead Union Free School District, the Second Circuit explained that a plaintiff could "prove discrimination indirectly either by meeting the requirements of McDonnell Douglas [Corp. v. Green, 411 U.S. 792 (1973)] and showing that the employer's stated reason for its employment action was pretext to cover-up discrimination ... or by otherwise creating a 'mosaic' of intentional discrimination by identifying 'bits and pieces [] of evidence' that together give rise to an inference of discrimination." 801 F.3d at 87 (quoting Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir. 1998), abrogated in part on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998)). The Second Circuit in Vega pointed to at least three allegations that the plaintiff suffered an adverse employment action "because of" his Hispanic ethnicity: (1) "he was assigned a large percentage of Spanish-speaking students because he [was] Hispanic and bilingual, while his similarly-situated co-workers were not assigned additional work"; (2) a "University of Puerto Rico" banner was placed outside his classroom; and (3) there was an attempt to transfer him to a Hispanic principal's school. 801 F.3d at 88-89. The court found that these actions, in combination, were "plausibly connected to [his] Hispanic background and therefore provide[d] a contextual basis for inferring discrimination," and he had "plausibly alleged that his Hispanic background was a 'motivating factor'" that contributed to his adverse employment action. Id. at 89 (citing Raniola v. Bratton, 243 F.3d 610, 628 (2d Cir. 2001)).
In contrast, Silva has not alleged any new events - beyond those Judge Gardephe considered and found deficient in the Dismissal Order - within the statutory period between July 1, 2015 and April 26, 2016, that could create such an implication of age-based discrimination. (See ECF No. 35-1). Her FAC and Response continue to allege only conclusory assertions of age-based discrimination, based on her own belief and speculation, which cannot plausibly plead the requisite inference of discriminatory intent. See Amava v. Ballvshear LLC, 295 F.Supp.3d 204, 220 (E.D.N.Y. 2018) (dismissing ADEA discrimination claim where "[t]he complaint's conclusory claim that the discrimination caused the termination does not follow the facts set forth in the complaint" and was "strictly conclusory and lack[ing] evidentiary support"); Luka, 263 F.Supp.3d at 486 (dismissing ADEA discrimination claim where "the facts alleged by Plaintiff do not raise a minimal plausible inference of discriminatory intent-let alone an inference that age was the but-for cause of the denial of her tenure application").
In addition, Silva has failed to plead that her "excessing," ATR status, and "U" rating affected her in any manner that could constitute an adverse employment action. (See ECF Nos. 35-1; 40). "[N]egative evaluations] alone . . . [do] not constitute [] adverse employment action[s]." Browne v. City Univ. of N.Y.. 419 F.Supp.2d 315, 331 (E.D.N.Y. 2005), aff'd sub nom. Browne v. Queen's Coll. City Univ. of N.Y., 202 Fed.Appx. 523 (2d Cir. 2006). If a negative evaluation "triggers] other negative consequences in the terms and conditions of the plaintiff's employment," however, it may constitute an adverse action. Dimitracopoulos v. City of New York, 26 F.Supp.3d 200, 214 (E.D.N.Y. 2014) (citing Treglia v. Town of Manlius, 313 F.3d 713, 720 (2d Cir. 2002)). Such changes "must go beyond mere speculation" to survive a motion to dismiss. Lebowitz v. N.Y.C. Dep't of Educ, 407 F.Supp.3d 158, 171 (E.D.N.Y. 2017) (citing Trachtenberg v. Dep't of Educ. of City of New York, 937 F.Supp.2d 460, 470 (S.D.N.Y. 2013)). Here, Silva's alleged "automatic negative economic consequences," tied to her position as an ATR status employee with a "U" rating are speculative. (ECF No. 40 at 9). Even though Silva alleges that she was held at a disadvantage due to her "U" rating (see ECF No. 35-1 ¶ 108), she does not allege that she ever applied for a per-diem substitute, extra-compensable, or permanent position, let alone that she did not receive such a position because of her "U" rating. See Lebowitz, 407 F.Supp.3d at 171 (finding that plaintiff failed to allege adverse employment action where he did "not allege that he ever applied for other employment, rendering speculative his claim that he was denied other work opportunities").
Finally, the FAC fails to allege actual damages from the alleged discrimination. Silva does not allege any changes to her salary or benefits between receiving her "U" rating and her retirement in June 2016. (See ECF No. 35-1). The only monetary damage Silva alleges include fees she paid to park at schools which she was assigned to after being "excessed." (ECF No. 35-1 ¶ 107). Lack of free parking, however, does not constitute as an adverse action. See Sherman v. City of New York, No. 18-CV-6907 (LDH), 2020 WL 6873453, at *4 (E.D.N.Y. Sept. 23, 2020) (finding that loss of free parking space was "insufficient to support an adverse employment action"); Maysonet v. Thompson, No. 03 Civ. 5223 (GEL), 2005 WL 975897, at *10 (S.D.N.Y Apr. 25, 2005) (holding that minor incidents such as "difficulties obtaining parking spaces ... do not amount to adverse employment action"). Although Silva claims to have lost earning potential by retiring before fully vesting her pension at 32 years, she did not retire until June 2016, a year after her last interaction with Rodriguez-Gonzalez. (ECF No. 35-1 ¶ 7). Silva's lack of awareness of her "U" rating until nearly two years after it was issued, and only after her union notified her, (id. ¶ 100), further undermines any inference that she suffered a material impact to the "terms and conditions of [her] employment." Vega, 801 F.3d at 85 (quoting Galabya v. N.Y.C. Bd. of Educ, 202 F.3d 636, 640 (2d Cir. 2000)). Given that her "excessing," ATR status, and "U" rating were not adverse actions, I respectfully recommend that leave to amend be denied as to this claim.
3. Hostile Working Environment and Constructive Discharge
a. Legal standard
"To plead a hostile work environment claim" under the ADEA, "a plaintiff must show that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Lebowitz, 407 F.Supp.3d at 181 (quoting Thomson v. Odyssey House. No. 14-CV-3857 (MKB), 2015 WL 5561209, at *13 (E.D.N.Y. Sept. 21, 2015) (internal quotation marks omitted)). In general, these interactions "must be more than episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive" enough to plead a hostile working environment claim. Id. (quoting Sotomayor v. City of New York, 862 F.Supp.2d 226, 261 (E.D.N.Y. 2012)).
To plead a constructive discharge claim, a former employee must allege that her "employer, rather than discharging [her] directly, intentionally creates a work atmosphere so intolerable that [she] is forced to quit involuntarily." Kurian v. Forest Hills Hosp., 962 F.Supp.2d 460, 470 (E.D.N.Y. 2013) (quoting Petrosino v. Bell Atl., 385 F.3d 210, 229 (2d Cir.2004)). "Thus, 'when an individual has failed to allege a hostile work environment, [her] constructive discharge claim based on those allegations must also fail.'" Silva-Markus, 2020 WL 5819555, at *7 (quoting Ware v. L-3 Vertex Aerospace, LLC, No. 16 Civ. 8067 (LAP), 2020 WL 783764, at *10 n.8 (S.D.N.Y. Feb. 18, 2020)).
b. Application
All of Rodriguez-Gonzalez's allegedly hostile actions occurred before July 1, 2015, and, accordingly, cannot give rise to a plausible hostile work environment claim. (See ECF No. 35-1). Silva-Markus, 2020 WL 5819555, at *9. Furthermore, there is "no indication that [Silva] interacted with Rodriguez-Gonzalez after June 2015." Silva-Markus, 2020 WL 5819555, at *9. The FAC also fails to allege any supposedly hostile events after the last interaction between Silva and Rodriguez-Gonzalez in June 2015. (See ECF No. 35-1). Accordingly, Silva has failed to plausibly allege a hostile work environment, and therefore also constructive discharge, under the ADEA. Therefore, I respectfully recommend that leave to amend as to these claims be denied as futile.
4. Retaliation
a. Legal standard
"To establish a prima facie case of retaliation, a plaintiff must show (1) the employee was engaged in an activity protected by [the ADEA], (2) the employer was aware of that activity, (3) an employment action adverse to the plaintiff occurred, and (4) there existed a causal connection between the protected activity and the adverse employment action." Silva-Marcus, 2020 WL 5819555, at *9 (quoting Langella v. Mahopac Cent. Sch. Dist., No. 18 Civ. 10023 (NSR), 2020 WL 2836760, at *11 (S.D.N.Y. May 31, 2020)).
"An adverse employment action in the context of retaliation is different than in the context of discrimination." Sosa v. N.Y.C. Dep't of Educ, 368 F.Supp.3d 489, 517 (E.D.N.Y. 2019).
For retaliation, "an adverse employment action is any action that could well dissuade a reasonable worker from making or supporting a charge of discrimination." Vega, 801 F.3d at 90 (internal citation omitted); see, e.g., Patane v. Clark, 508 F.3d 106, 116 (finding plaintiff's allegations that employers failed to assign her work in order to induce her to quit her job alleged adverse employment action because it would cause someone to "think twice" about engaging in protected activity). This "covers a broader range of conduct than does the adverse-action standard for claims of discrimination[.]" Vega, 801 F.3d at 90 (finding the same conduct that did not constitute an adverse employment action in the context of discrimination did constitute an adverse employment action in the context of retaliation).
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) (internal citation omitted). "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 v. City Univ. of N.Y., No. 16 Civ. 3358 (VEC), 2017 WL 2912525, at *10 (S.D.N.Y. July 7, 2017); see Williams v. Time Warner Inc., No. 09 Civ. 2962 (RJS), 2010 WL 846970, at *4 (S.D.N.Y Mar. 3, 2010) ("[W]orkplace difficulties entirely consistent with non-race-, non-gender personality disputes . . . are plainly not actionable under statutes intended to root out discrimination on the basis of certain statutorily defined protected characteristics."), aff d, 440 Fed.Appx. 7 (2d Cir. 2011)).
In addition to alleging a protected activity, the complaint must also plead that the "'actual decisionmaker' responsible for the adverse actions was aware of [the] protected activity[.]" Time Warner, 2010 WL 846970, at *5 (finding the 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).
b. The Dismissal Order
Judge Gardephe held that the complaint Silva filed with her union (the "UFT Complaint"), could not support a retaliation claim because there was "no indication that this complaint alleged age discrimination." Silva-Marcus, 2020 WL 5819555, at *9. Because Defendants did not challenge it, Judge Gardephe assumed that the complaint Silva filed with the DOE's Office of Equal Opportunity (the "OEO Complaint") constituted protected activity under the ADEA, and that Defendants were aware of the OEO Complaint. See Id. at *10. For the purposes of the retaliation claim, Judge Gardephe also deemed Silva's "U" rating to be an adverse action. See Id. (citing Spaulding v. N.Y.C. Dep't of Educ, No. 12-CV-3041 (KAM) (VMS), 2015 WL 12645530, at *43 (E.D.N.Y. Feb. 19, 2015) ("Although ... negative performance reviews, standing alone, do not rise to the level, of an adverse action for the purposes of a discrimination claim, courts have held that such allegations may be adverse actions for purposes of a retaliation claim.")).
Where Silva's retaliation claim fell short, though, was in pleading "causation" between the OEO Complaint and Silva's "U" rating, "excessing," and ATR status. Silva-Marcus, 2020 WL 5819555, at *10. Judge Gardephe held that, "by [Silva]'s own account, Rodriguez-Gonzalez was intent on forcing [her] out of the High School and giving her a 'U' rating well before [Silva] complained to the" OEO in June 2015, and, as a result, "there can be no causal connection." Id. at *10 (emphasis added).
c. Silva's arguments
In the FAC, Silva continues to rely on the assertion that, after two official complaints she made against Rodriguez-Gonzalez, Rodriguez-Gonzalez retaliated by issuing her a "U" rating, "excessing" her into ATR status, and causing other inconveniences to further harass her. (See ECF Nos. 35-1 ¶ 100; 40 at 7, 10, 11). These acts of retaliation, Silva argues, were materially adverse actions because they "dissuade[d] [her] from engaging in protected activities under the broader retaliation standard for adverse actions." (ECF No. 40 at 11). In her FAC, Silva realleges that, shortly after an incident on December 18, 2014, she filed her UFT Complaint. (ECF No. 35-1 ¶¶ 20, 24, 26). Despite having filed the UFT Complaint, Silva alleges that Rodriguez-Gonzalez continuously harassed her to the point that she "reluctantly resigned from her position as the guidance counsel or for the PM and Saturday academic programs in orderto limit her interactions with [] Rodriguez-Gonzalez." (Id. ¶ 33). Around June 1, 2015, Silva filed the OEO Complaint, which described Rodriguez-Gonzalez's continuous harassment. (Id. ¶ 91). Silva alleges that, three weeks after her OEO Complaint, Rodriguez-Gonzalez "retaliated against her by requiring her to attend a mandatory medical examination," which Silva passed. (ECF Nos. 40 at 7; 35-1 ¶¶ 93-95). In addition, Silva argues that after filing her OEO Complaint in June, she was "excessed" and placed into the ATR pool in September 2015, in another retaliatory act by Rodriguez-Gonzalez. (ECF No. 40 at 10-11). Afterward, she was sent to multiple schools without compensation for parking. (Id. at 11).
d. Defendants' arguments
Defendants argue that the FAC fails to cure the defects with the Complaint, noted in the Dismissal Order, because Silva does not establish a causal connection between protected activities and Rodriguez-Gonzalez's alleged retaliation against her. (ECF No. 41 at 15).
e. Application
Silva has not alleged any new facts in the FAC to plead that the UFT Complaint was based on age discrimination. (See ECF No. 35-1). Therefore, the Court will follow Judge Gardephe's Dismissal Order and only consider whether Silva's OEO Complaint, and events that followed - i.e., the "U" rating, "excessing," ATR assignment, parking fees, and medical examinations - plausibly allege retaliation.
On June 23, 2015, Silva received notice of her required medical examination, which she successfully passed on June 30, 2015. (ECF No. 35-1 ¶ 93). Although both events fall outside the statutory period - before July 1, 2015 - the Court considers them in evaluating the retaliation claim.
The Court presumes, as Judge Gardephe did in the Dismissal Order, that Silva's "U" rating was an adverse employment action, and Defendants do not dispute that the OEO Complaint was "protected activity." (See ECF No. 41). What the FAC fails to remedy is the same issue noted by Judge Gardephe in the Dismissal Order: Silva fails to allege how Rodriguez-Gonzalez's adverse actions towards her were "causally connected" to the OEO Complaint. (See ECF No. 35-1).
Silva alleges that she experienced harassment before and after she filed the OEO Complaint. (ECF No. 35-1 ¶¶ 91-92). But, Silva has not supplemented her allegations about Rodriguez-Gonzalez's conduct between March and May 2015. (Compare ECF No. 1 ¶¶ 59-61 with 35-1 at ¶ 59-61). Therefore, the inference remains that "Rodriguez-Gonzalez was intent on forcing Plaintiff out of the High School and giving her a 'U' rating well before" she filed the OEO Complaint, and precludes an inference of causation. Silva-Markus, 2020 WL 5819555, at *10.
In addition, although Silva asserts that her "excessing," ATR placement, parking fees, and medical examinations were in retaliation for the OEO Complaint, she offers only speculation as to how they are causally connected. (See ECF Nos. 35-1 ¶¶ 93-97; 40 at 7, 11). Silva acknowledges that her "excessing" and ATR status may be due to other reasons such as the school reducing its faculty. (ECF No. 35-1 ¶ 101). As noted above, lack of reimbursement for parking fees also does not allege an adverse action. (See supra p. 13). Furthermore, Silva does not allege that Rodriguez-Gonzalez compelled her to pay for parking, only that Rodriguez-Gonzalez "excessed" her, which led to her ATR placement at multiple schools without free parking. (See ECF No. 35-1). Similarly, Silva's speculation that it was Rodriguez-Gonzalez who ordered her to have a medical examination before the fall semester is contradicted by her allegation that "the medical examination was ordered by directive of the Superintendent, Carron Staple." (ECF No. 35-1 ¶ 94).
Accordingly, the "excessing," ATR status, medical examinations, and parking fees '"cannot be chalked up to retaliation . . . because they were part and parcel of a course of conduct that began well before any protected activity took place.'" Silva-Markus, 2020 WL 5819555, at *10 (quoting Varughese v. Mount Sinai Med. Ctr.. No. 12 Civ. 8812, 2015 WL 1499618, at *66 (S.D.N.Y. Mar. 27, 2015). Therefore, because Silva has failed to plead a plausible claim of retaliation under the ADEA, the Court respectfully recommends that leave to amend be denied.
5. Supplemental Jurisdiction
With no surviving federal claims, I respectfully recommend that the Court decline to exercise jurisdiction over Silva's NYSHRL and NYCHRL claims and deny leave to amend in this respect as well. See Hill v. Didio, 191 Fed.Appx. 13, 15 (2d Cir. 2006) (finding that, because plaintiff's federal claims were dismissed early in the litigation, the court did not abuse its discretion by dismissing plaintiff's state law claims as well); Silva-Markus, 2020 WL 5819555, at *11.
IV. CONCLUSION
For the reasons set forth above, I respectfully recommend that the Motion be DENIED.
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).