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Moore v. City of New York

March 3, 2010


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.


The complaint in this action was filed on October 16, 2008, and seeks damages and other relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., ("Title VII"); the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"); the Americans with Disabilities Act, 42 U.S.C. §§ 12101 et seq. ("ADA"); the New York State Human Rights Law ("NYSHRL"), Executive Law §§ 296 et seq.; the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-107 et seq.; and 42 U.S.C. § 1983. Plaintiff Mercedes Moore alleges employment discrimination based on age and disability, retaliation, and violations of her right to due process and equal protection under the Fifth and Fourteenth Amendments of the United States Constitution. (Cmplt. ¶ 1) On April 21, 2009, Defendants filed a motion to dismiss based on a variety of federal and state procedural bars and Moore's failure to state a claim on which relief can be granted. (Docket No. 18) For the reasons set forth below, Defendants' motion to dismiss will be GRANTED.


Moore was employed by the New York City Department of Education ("DOE") between 1978 and August 2007, when she was terminated from her position as a tenured teacher at P.S. 49 in the Bronx. (Cmplt. ¶ 30, 44) At the time of Moore's termination,Defendant Saundra Kase was employed as the Superintendent of District 85 -- which includes P.S. 49 -- and Defendants Laura Galloway and Olivia Hamilton were P.S. 49's principal and assistant principal. (Cmplt. ¶ 8)

There is long history of litigation between the parties, including a nineteen-day disciplinary hearing conducted between 2005 and 2007 pursuant to Education Law § 3020-a, several otheradministrative proceedings, and three prior court actions. In all of these proceedings, Moore has alleged -- unsuccessfully -- that she was the victim of unlawful discrimination during her DOE employment.

In 2001, Moore suffered serious injuries after falling on a wet floor at her school. (Id. ¶ 36-38) She received ongoing treatment for these injuries, and missed work for nearly a year. (Id. ¶ 42) She returned to work in August 2002 (id.) but had to undergo hip replacement surgery in August 2006. (Id. ¶ 39)

On June 25, 2003, the DOE served Moore with ten specifications of misconduct committed during the 2002-03 school year, including excessive absences, insubordination, incompetent or inefficient services, and neglect of duties. (Def. Ex. B at 2-8). On August 28, 2003, Moore was terminated without a hearing, although she had requested a hearing pursuant to Education Law § 3020-a. (Def. Ex. A at 2)

On December 18, 2003, Moore commenced an Article 78 proceeding in Supreme Court for the State of New York challenging her termination and alleging that she was improperly dismissed without a hearing. (Id. at 3) On May 24, 2004, the state court annulled Defendants' decision to terminate Moore, reinstated her with back pay and benefits, and remanded the matter for a hearing pursuant to § 3020-a. (Id.) The § 3020-a hearing began on July 11, 2005, but Moore asserted she could not participate in the proceedings because of a foot condition and lack of health insurance.*fn1 She petitioned for a stay of the hearing based on her disability, but the state court denied that request on February 17, 2006. (Def. Ex. C) The disciplinary hearing proceeded despite Moore's repeated absences, and on August 13, 2007, the hearing officer found Moore guilty of many of the DOE's specifications of misconduct and ruled that termination was appropriate. (Def. Ex. B at 27-28 ("the proven charges against [Moore] were so serious, often intentional, and egregious that her termination is justified")) Moore received notice of the § 3020-a decision on August 20, 2007. (Def. Ex. G, 11/29/07 Appeal)

Moore filed a petition to overturn the § 3020-a decision in state court, claiming that she had been denied due process and that she had been discriminated against at work. (Def. Ex. D; Ex G) Moore argued that the § 3020-a hearing was held without her knowledge or participation on several occasions while she was on medical leave from work. (Ex. D at 2) The DOE cross-moved to dismiss the petition, and on June 13, 2008, the state court granted the DOE's motion, holding that the hearing officer's decision "was neither arbitrary nor capricious." (Id. at 6).

On August 19, 2004, before the § 3020-a hearing had begun, Moore filed her first federal action, alleging that the DOE and Defendants Galloway, Kase and Hamilton had violated her rights under 42 U.S.C. §§ 1981, 1982, and 1983, the ADEA, and the ADA. Moore v. New York City Dep't of Education, et al., No. 04 Civ. 6739 (PKC) ("First Federal Action") (Def. Ex. E). Moore alleged that Defendants had failed to accommodate her disability by assigning her to certain classrooms, and that her August 2003 termination was retaliation for a complaint she had filed with the New York State Division of Human Rights ("SDHR") in December 2002. (Id.) On March 24, 2006, Judge Castel dismissed the action with prejudice for failure to prosecute under Fed. R. Civ. P. 41(b). (Def. Ex. F)

On March 7, 2006, during the pendency of the First Federal Action and § 3020-a hearing, Moore filed a second charge of discrimination with the SDHR, alleging that the DOE had discriminated against her because of her age and disability and had failed to accommodate her disability by assigning her to work at a Regional Operation Center in Manhattan, and then in Brooklyn, in February 2005 after her reinstatement. (Def. Ex. H) SDHR dismissed Moore's complaint on August 14, 2008, finding no probable cause. Moore v. City of New York DOE, Determination and Order After Investigation, SDHR Case No. 10110575 (Def. Ex. I).

After the state court dismissed Moore's petition to vacate the § 3020-a hearing decision, Moore filed a charge with the EEOC alleging that her August 2007 termination constituted age and disability discrimination and unlawful retaliation for the prior proceedings she had initiated. (Def. Ex. J) The EEOC dismissed the charge as untimely and issued Moore a right to sue letter on July 16, 2008. (Def. Ex. L) Moore filed the instant action on October 16, 2008.



"To survive a motion to dismiss," a claim "must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In making this determination, a Court must be mindful of two corollary rules. "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. In other words, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555). "Second, only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950 (citing Twombly, 550 U.S. at 556). The Supreme Court has stated that "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. (citation omitted).

"When determining the sufficiency of plaintiffs' claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in plaintiffs' . . . complaint, . . . to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). The following documents are properly before the Court because they were incorporated by reference in the complaint: (1) the state court order annulling Moore's August 2003 termination (Def. Ex. A); (2) the § 3020-a hearing decision (Def. Ex. B); (3) the state court dismissal of Moore's petition to overturn the § 3020-a hearing (Def. Ex. C); (4) the August 3, 2004 complaint in the First Federal Action (Def. Ex. E); (5) Judge Castel's order dismissing the First Federal Action under Rule 41(b) (Def. Ex. F); (6) Moore's appeal of the § 3020-a hearing decision (Def. Ex. G); (7) the March 21, 2006 SDHR complaint (Def. ...

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