The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff Gary Ritterband ("Plaintiff") filed the present action against defendants Hempstead Union Free School District (the "District"), Susan McPhee ("McPhee"), and Julius Brown ("Brown") (collectively, "Defendants") claiming that he was discriminated against based on his race and religion. Defendants have moved to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(6). For the reasons stated below, the motion is granted in part and denied in part.
The following facts are taken from the Amended Complaint and are presumed true for purposes of this motion.
Plaintiff is a white, Jewish male who commenced employment with the District in 1973 as a fifth and sixth grade teacher. "Since that time, Plaintiff has witnessed and experienced disparate treatment towards [w]hite individuals." (Am. Compl. ¶ 12.)
Plaintiff transferred to Alverta B. Gary Schultz Middle School ("ABGS") in the Fall of 2001. At all times relevant to the Amended Complaint, Brown was the Principal of ABGS and Plaintiff's supervisor. Upon Plaintiff's arrival at ABGS, Plaintiff sought a position as a Subject Matter Specialist ("SMS") in Science. This position was ultimately given to McPhee, a black female, who had less experience than Plaintiff. As a result of her SMS placement, McPhee became Plaintiff's direct supervisor. Thereafter, McPhee "constantly and continuously harassed Plaintiff." (Id. ¶ 14.)
In September 2004, Plaintiff applied for an after-school teaching program entitled Academic Intervention Services ("AIS") Program. Plaintiff did not get the position, and alleges that all of the sixth grade teachers selected to the AIS Program were black and less qualified than Plaintiff. Among the individuals selected was McPhee, who was responsible for selecting who would receive positions within the program. No white teachers were selected for the program.
In December 2004, Plaintiff was falsely accused of sexual misconduct with a student. Plaintiff met with defendants Brown and McPhee as well as Plaintiff's Union representative to discuss the incident. Although Plaintiff was told that the matter would be investigated in an expedited manner, no such investigation occurred.
In May 2005, as a result of this unfounded accusation, Plaintiff was assigned work at home and forcefully escorted off the premises by school security. Plaintiff immediately filed a grievance with the school. Thereafter, Plaintiff received a standard form inviting him to return to work and he was reinstated in August 2005. The form made no reference to the grievance or to the "promised investigation which would have helped to mend Plaintiff's reputation." (Am. Compl. ¶ 23.)
In September 2005, Plaintiff was approached to tutor a student after school hours. Plaintiff requested board approval and subsequently accepted the position. Plaintiff was assured that his name was on the available tutoring list. One week later, Plaintiff was informed that he was not approved for tutoring because of the allegations made against him in 2004. Subsequently, Plaintiff's name was pulled from the list of available tutors during a board meeting. Although Plaintiff's name was eventually put back on the list, Plaintiff could not continue tutoring the student who had previously approached him. In addition, although Plaintiff's name remains on a list of teachers available for home tutoring, and despite a need for home tutors, Plaintiff has not been called for any such position.
In September 2005, Plaintiff applied for positions in the AIS Program. He was denied placement while similarly situated black counterparts with less experience than Plaintiff received positions.
In November 2005, Plaintiff again applied for an SMS position in the school's science department. Plaintiff was again denied the position and the position was given to a black teacher with no administrative certification. All of the SMSs at ABGS are black.
Plaintiff was assigned to five different classrooms in the 2005/2006 school year, in violation of Plaintiff's collective bargaining agreement. Similarly situated black teachers have not been subject to such movement.
On November 16, 2005, Plaintiff received a memorandum from the Assistant Principal accusing Plaintiff of failing to supervise his class. Plaintiff alleges that this accusation was "malicious, discriminatory, and unfounded." (Am. Compl. ¶ 32.) Plaintiff was observed within class three times, two more than similarly situated black teachers. One such observation was by McPhee, who gave Plaintiff a negative review despite her admission that she knew "nothing of science." (Id. ¶ 35.) Plaintiff "rebutted this review and has since been subjected to retaliation for his actions." (Id.)
In March 2006, Plaintiff received a memorandum stating that there were concerns regarding his professional behavior. Plaintiff claims that this memorandum was in retaliation for his continued objections regarding alleged discrimination "based on his race and/or religion." (Id. ¶ 36.)
In the Summer of 2006, Plaintiff applied for the position of Assistant Coordinator of the summer school program. Plaintiff did not receive an interview for the position and the position was filled by a black employee who was less qualified than Plaintiff.
Finally, Plaintiff alleges generally, without specifying any dates, that he has been denied all special teaching assignments such as after-school programs and tutoring.
II. Procedural Background
Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on March 29, 2006, and received a right-to-sue letter on November 27, 2006. Plaintiff filed the instant action on December 14, 2006. Thereafter, on April 2, 2007, Plaintiff filed the Amended Complaint.
III. Claims Asserted in the Amended Complaint
Plaintiff asserts claims for: (1) violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII") and the New York State Human Rights Law ("NYSHRL), N.Y. Exec. Law §§ 290 et seq., against all Defendants; (2) aiding and abetting under NYSHRL § 296(6) against Brown and McPhee; and (3) violations of Plaintiff's constitutional rights pursuant to 42 U.S.C. §§ 1981 ("Section 1981") and 1983 ("Section 1983") against the District, and McPhee and Brown in their individual capacities. By instant motion, Defendants move to dismiss: (1) all of Plaintiff's claims against Brown; (2) Plaintiff's Section 1981 and 1983 claims against the District; (3) Plaintiff's Section 1981 and 1983 claims to the extent they are based upon religious discrimination; (4) all of Plaintiff's claims based upon an allegedly ...