Opinion
22-CV-00056 (JLR)(SN)
01-10-2023
YHANKA VERAS, Plaintiff, v. NYC DEPARTMENT OF EDUCATION, et al., Defendants.
REPORT AND RECCOMENDATION
SARAH NETBURN, United States Magistrate Judge
TO THE HONORABLE JENNIFER L. ROCHON:
Plaintiff Yhanka Veras sues the New York City Department of Education (“DOE”), Principal Javier Trejo, and Superintendent Manuel Vidal Ramirez.
Plaintiff is a former employee of DOE. She alleges that Defendants discriminated against her by overlooking her for a position and transferring her to a different school. Plaintiff's First Amended Complaint asserts five causes of action under state and federal law. Plaintiff alleges that Defendants discriminated against her on the basis of her sex and religion in violation of Title VII of the Civil Rights Act, and on the basis of her disability in violation of the Rehabilitation Act of 1973 and Title I of the ADA (Counts One and Two, respectively). Count Three asserts that Defendants' actions violated New York City Human Rights Law (“NYCHRL”) and New York State Human Rights Law (“NYSHRL”). Count Four asserts a claim for sexual harassment, and Count Five is for negligent infliction of emotional distress.
Defendants have moved to dismiss Plaintiff's First Amended Complaint (“FAC”) for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. I recommend that the Court grant Defendants' motion to dismiss in full, in part with prejudice and in part without prejudice, and grant Plaintiff leave to file a Second Amended Complaint with respect to certain claims.
PLAINTIFF'S ALLEGATIONS
“We [] provide a brief recitation of the most pertinent factual allegations, which are presumed to be true for purposes of considering a motion to dismiss for failure to state a claim.” Fin. Guar. Ins. Co. v. Putnam Advisory Co., LLC, 783 F.3d 395, 398 (2d Cir. 2015).
Plaintiff was employed by DOE from 1992 until her retirement in 2019. FAC, ¶ 8. She was originally hired as a Student Aide, before being promoted to School Aide in 1995 and then to Health Aide in 2000. Id. Until the final two months of her tenure with DOE, Plaintiff worked at the High School for Health Careers and Sciences at the George Washington Educational Campus (“GW”) “because it was accessible for her physical and medical condition.” Id. Plaintiff suffers from “arthritis, epilepsy, hard of hearing, Brain tumors, leg brace, asthma, Type 2 diabetes, HTN, Bipolar, and MS.” FAC, ¶ 20. GW was one block from her home. FAC, ¶ 34.
On July 3, 2019, Defendant Trejo (GW's principal at the time) sent Plaintiff an “excessing letter” informing her that she was being transferred to Park East High School (“PEH”). FAC, ¶ 30-31. Plaintiff was scheduled to work fewer hours at PEH than at GW. FAC, ¶ 32. Plaintiff “was unable to continue her job at PEH because of the lack of disability accommodations, the distance from her home, stress, and mental anguish.” FAC, ¶ 29. Specifically, PEH “does not have an elevator rump [sic] or tunnel,” and the “[t]raveling was physically challenging” for Plaintiff. FAC, ¶¶ 31, 32. Plaintiff resigned from PEH and DOE after two months because she “could not keep up with the commute.” FAC, ¶ 34.
Plaintiff alleges that defendants “maintained an environment which ignored her disability, harassed her for practice of her ‘Yoruba' religion and sought to undermine her humanity by refusing to acknowledge her professional excellency, tenure, seniority, and job performance based on that bias.” FAC, ¶ 6. Plaintiff “experienced discriminatory practices designed to hinder her career and subsequently to force her to resign.” FAC, ¶ 23. With respect to discrimination, Plaintiff alleges that, “[a]s a result of her religious practice and being a woman, she was subject to scorn, ridicule, and disparate treatment. At one time a co-worker told her to ‘change her perfume because it was associated with witchcraft.'” FAC, ¶ 16.
Plaintiff also alleges that she was “denied a promotion which she was qualified for” “in retaliation for reporting sexual harassment at GW.” FAC, ¶ 24. She alleges that her reassignment to PEH was in retaliation for reporting sexual harassment and for complaints regarding disability accommodations. FAC, ¶¶ 24, 29.
Finally, Plaintiff alleges that Defendants created a “hostile and uncooperative environment, designed to deprive, frustrate and humiliate her as an employee.” FAC, ¶ 25 (emphasis in original). This discrimination was directed at Plaintiff “because of her religion and disability, also took the form of sexual harassment, done in a manner which humiliated her.” FAC, ¶ 25. Plaintiff alleges that, while at GW, “she was the subject of sexual harassment, innuendo, and sexual jokes by KNOWN co-worker(s). Including one incident in which a coworker humped in her presence and another in which they stuck their tongue out.” FAC, ¶ 33.
DISCUSSION
I. Dismissal under Rule 12(b)(6)
To survive a 12(b)(6) motion to dismiss, a complaint “must allege sufficient facts . . . 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)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court “accept[s] as true all factual statements alleged in the complaint and draw[s] all reasonable inferences in favor of the non-moving party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). But the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678. The complaint must raise factual allegations “enough to raise a right to relief above the speculative level.” Goldstein v. Pataki, 516 F.3d 50, 56 (2d Cir. 2008) (quoting Twombly, 550 U.S. at 555).
II. Discriminatory Intent
Plaintiff's discrimination causes of action require her to plead facts sufficient to support an inference of discriminatory intent. See Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (“Title VII [] requires a plaintiff asserting a discrimination claim to allege two elements: (1) the employer discriminated against [them] (2) because of [their] race, color, religion, sex, or national origin.”); Natofsky v. City of New York, 921 F.3d 337, 348 (2d Cir. 2019) (“[T]he ADA requires a plaintiff alleging a claim of employment discrimination to prove that discrimination was the but-for cause of any adverse employment action.”); Wright v. New York State Dep't of Corr., 831 F.3d 64, 72 (2d Cir. 2016) (noting that the standards for a discrimination claim under the Rehabilitation Act are “generally the same” as those under the ADA); Melman v. Montefiore Med. Ctr., 946 N.Y.S.2d 27, 30 (1st Dep't 2012) (“[U]nder the respective Human Rights Laws of the State and City of New York . . . a plaintiff alleging employment discrimination ....must show that . . . adverse action occurred under circumstances giving rise to an inference of discrimination.”).
“Under Iqbal and Twombly, then, in an employment discrimination case, a plaintiff must plausibly allege that (1) the employer took adverse action against [them] and (2) [their] race, color, religion, sex, or national origin was a motivating factor in the employment decision.” Vega, 801 F.3d 86. “The facts required by Iqbal to be alleged in the complaint . . . . need only give plausible support to a minimal inference of discriminatory motivation.” Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015). “An inference of discrimination can arise from . . . the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the plaintiff's discharge.” Id. at 312.
The only specific facts that are alleged as religious discrimination concern an incident involving an unnamed co-worker on an unspecified Dated: “At one time a co-worker told [Plaintiff] to ‘change her perfume because it was associated with witchcraft.'” FAC, ¶ 16. This isolated comment by a non-party-which does not obviously concern her religion-is insufficient to state a claim for religious discrimination by Defendants. Otherwise, Plaintiff's allegations of discrimination are entirely conclusory and vague. See, e.g., id. (Plaintiff was “subject to scorn, ridicule, and disparate treatment”); FAC, ¶ 23 (Plaintiff “experienced discriminatory practices”).
Plaintiff's allegations of disability discrimination are even more bare. She does not allege any facts demonstrating that she was treated differently because of her disability. Plaintiff also does not identify any accommodation that she requested, received, or was denied while at GW or PEH. She alleges that her commute to PEH was significantly longer than her one-block commute to GW, and that PEH did not have “an elevator rump or tunnel.” But she does not allege that she was unable to perform her job because of this barrier or that she requested a reasonable accommodation.
Finally, Plaintiff alleges that her transfer to PEH was in “retaliation for previous complaints [Plaintiff] had made regarding disability accommodations at GW, religious practice, as well as sexual harassment at GW.” FAC, ¶ 29. Plaintiff, however, does not identify a single complaint that she lodged at any time in her two-decade career with DOE, much less any evidence that Defendants transferred her for a discriminatory purpose.
Thus, because Plaintiff has not alleged sufficient facts to allow the Court to draw the reasonable inference that Defendants acted with discriminatory intent, the Court should dismiss Counts One, Two and Three (brought under Title VII, the ADA, the Rehabilitation Act, NYSHRL, and NYCHRL). As discussed below, to the extent the Court grants leave to amend the complaint, Plaintiff must also plausibly allege that she suffered an adverse employment action. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (“[A] plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” (internal quotation marks omitted); Smith v. New York & Presbyterian Hosp., 440 F.Supp.3d 303, 330 (S.D.N.Y. 2020) (finding that a plaintiff's reassignment was not “an adverse employment action because it did not materially change the terms and conditions of her employment.”); Craven v. City of New York, No. 20-cv-8464 (ER), 2022 WL 2967310, at *6 (S.D.N.Y. July 27, 2022) (“When a transfer results in a longer commute to work, however, that is generally not enough, on its own, to establish an adverse employment action.” (emphasis added)).
III. Sexual Harassment
Count Four of Plaintiff's complaint does not reference a statutory cause of action, though it does cite a case discussing the standard for pleading a hostile work environment claim under Title VII. To the extent that Plaintiff is attempting to state such a claim predicated on sexual harassment by her co-workers, she has failed to do so. A plaintiff asserting a Title VII violation under a hostile work environment theory must demonstrate that “the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [their] work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer.” Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 436 (2d Cir. 1999) (internal quotation marks omitted).
Plaintiff alleges that she was “the subject of sexual harassment, innuendo, and sexual jokes by KNOWN co-worker(s). Including one incident in which a co-worker humped in her presence and another in which they stuck their tongue out.” FAC, ¶ 33. She alleges that Defendant Trejo knew of “such incidents but did nothing.” Id. Later, Plaintiff alleges in conclusory fashion that “Defendant allowed sexual harassment to continue against [Plaintiff] despite the many complaints made by [her] about the behaviour.” FAC, ¶ 38.
Plaintiff must plausibly allege that the environment was permeated with discriminatory intimidation that was sufficiently severe or pervasive. She has failed to do so because the two incidents by unidentified co-workers at unidentified times appear to be isolated instances and are not sufficient to establish a hostile workplace. Thus, Count Four of Plaintiff's First Amended Complaint should be dismissed.
IV. Negligent Infliction of Emotional Distress
“Under New York law, a plaintiff alleging NIED must show (1) extreme and outrageous conduct, (2) a causal connection between the conduct and the injury, and (3) severe emotional distress.” Truman v. Brown, 434 F.Supp.3d 100, 122 (S.D.N.Y. 2020) (internal quotation marks omitted). To establish the first element, “a plaintiff must allege conduct that is ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'” Id. (quoting Goldstein v. Mass. Mut. Life Ins. Co., 875 N.Y.S.2d 53, 55 (1st Dep't 2009)).
Plaintiff does not address these elements, stating only that “[t]hrough defendants' negligent actions of ridicule, slurs, and hostile behavior towards plaintiff, [she] developed a second brain tumour, and her overall mental and physical health started to deteriorate because of her forced removal from GW.” FAC, ¶ 39.
To the extent that “ridicule, slurs, and hostile behavior” refers to the three instances discussed above, Plaintiff has attributed those actions to un-identified co-workers, not Defendants. In any event, they fall far short of the standard for extreme and outrageous conduct. Plaintiff does not elaborate on what “forced removal” means, but to the extent that she is referring to her transfer to PEH, that will also not suffice. Finally, Plaintiff offers no factual basis from which the Court may infer causation, or which would demonstrate emotional distress. Thus, Count Five of Plaintiff's First Amended Complaint should be dismissed.
LEAVE TO AMEND
Rule 15(a)(2) requires that leave to amend be freely given when justice so requires. Fed.R.Civ.P. 15(a)(2). “However, in determining whether leave to amend should be granted, the district court has discretion to consider, inter alia, the apparent futility of amendment.” Grace v. Rosenstock, 228 F.3d 40, 53 (2d Cir. 2000) (internal citations and quotation marks omitted); “[F]utility of amendment is not the only basis for denying leave to amend .... a district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.” Carroll v. Trump, 590 F.Supp.3d 575, 578 (S.D.N.Y. 2022).
The near-total lack of factual detail in the First Amended Complaint makes it impossible to determine whether amendment would be futile. And while Plaintiff has already amended her complaint once, this is because she commenced this case pro se and only later obtained counsel. In addition, the First Amended Complaint states that “[a] few instances of discrimination are mentioned here as mere examples, but [Plaintiff] has documented more examples of defendants' history of abuse best articulated in direct testimony (deposition) or trial testimony due to her many disabilities.” FAC, ¶ 38, n.7. The Court is, therefore, hesitant to conclude that Plaintiff's claims are entirely meritless. Moreover, the Court has identified no bad faith or undue delay on the part of Plaintiff, and given this case's relatively recent filing, leave to amend will not unduly prejudice Defendants.
Dismissal at this juncture would be entirely predicated on counsel's failure to plausibly plead a claim for relief. As such, justice requires that leave to amend be granted. Plaintiff, however, should not be permitted leave to amend claims that would be futile. Plaintiff concedes that her claims against the individual defendants are barred under Title VII and the ADA. Plf. Opp. at 23. Accordingly, those claims should be dismissed with prejudice.
CONCLUSION
Plaintiff has pleaded no facts that raise the likelihood of her claims beyond a speculative level. Accordingly, I recommend that the Court grant Defendants' motion to dismiss, but with leave for Plaintiff to file a Second Amended Complaint with respect to certain claims.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the 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. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Jennifer L. Rochon at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Rochon. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).