The opinion of the court was delivered by: Sandra J. Feuerstein United States District Judge
On July 3, 2007, plaintiff Jennifer Saunders ("plaintiff") filed a pro se complaint against defendant New York City Department of Education ("the DOE"), alleging employment discrimination based upon her age, race and sex, and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et. seq. By order dated July 14, 2009, I granted the DOE's motion to dismiss the complaint pursuant to Rules 8(a)(2) and 12(b)(6) of the Federal Rules of Civil Procedure and dismissed plaintiff's complaint without prejudice and with leave to amend the complaint. Plaintiff timely filed an amended pro se complaint, in which she, inter alia, added defendants Principal Resnick, Renal Piton, Matt Guttman, Santiago Taveras, Lori Mastramauro, Judy Rivera, Donna Dennis and Esther Anthinez (collectively, and together with the DOE, "the DOE defendants"); Randi Weingarten and Patricia Crispino (collectively, "the UFT defendants"); and Eric Lawson ("Lawson")*fn1 . By order dated January 19, 2010, I: (1) granted the branch of Lawson's motion seeking dismissal of the amended complaint as against him and dismissed the amended complaint as against Lawson with prejudice as barred by the doctrine of absolute immunity; and (2) sua sponte dismissed (a) all claims against Rivera and Mastramauro and (b) certain of plaintiff's other claims against the remaining defendants. Plaintiff subsequently retained counsel to represent her in this action and voluntarily withdrew her remaining claims against the UFT defendants. The DOE defendants now move pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Procedure to dismiss the amended complaint as against them for lack of subject matter jurisdiction and failure to state a claim, respectively, and plaintiff cross-moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment. For the reasons discussed herein, the DOE defendants' motion is granted in part and denied in part and plaintiff's cross motion is denied.
Plaintiff is a fifty (50) year old African-American female. (Amended Complaint [Compl.], ¶ 149). At all relevant times, plaintiff was employed by the DOE as a tenured teacher at the Graphic Communication Arts High School ("GCAHS") and as a coordinator in the New York City Mentoring Program ("the Mentoring Program"). (Compl., ¶ 6).
Defendant Jerod Resnick ("Resnick") was, at all relevant times, the principal of GCAHS.
(Id.) Plaintiff alleges that Resnick harassed her after she reported alleged "inappropriate sexual behavior" between a teacher and student at GCAHS. (Compl., ¶ 6).
Plaintiff had "difficulty completing the enormous burden of administrative tasks" assigned her, as a result of which Resnick met with her and Assistant Principal Nancy Johnson ("Johnson") in May 2004. (Compl., ¶¶ 7-11). Plaintiff alleges that during that meeting, Resnick "so assaulted Plaintiff * * * in his office with his body language as to cause sufficient fear in Plaintiff that she abruptly retreated from his office * * *." (Compl., ¶ 7; see also ¶¶ 8, 10, 12).
On June 16, 2004, Resnick again met with plaintiff and Johnson, as well as with Lori Mastramauro ("Mastramauro"), the director of the Mentoring Program, to discuss plaintiff's failure to timely submit paperwork required for the Mentoring Program and to appear at the endof-year meeting for coordinators of the Mentoring Program. (Compl., ¶ 13). Plaintiff alleges that at that meeting, Resnick "ranted and raved at the idea that Mastramauro was bringing [plaintiff] favors [given to all coordinators of the Mentoring Program during the meeting at which plaintiff failed to attend] and a certificate of acknowledgment for [her] service [as a coordinator] * * *." (Compl., ¶¶ 14-15). According to plaintiff, she "endured [Resnick's] tirade as long as humanly reasonable and then retreated from [his] office." (Compl., ¶ 16). Plaintiff alleges that shortly thereafter, Johnson asked her to resign as a coordinator of the Mentoring Program, which she refused to do. (Compl., ¶ 17).
On June 24, 2004, Resnick again summoned plaintiff for a meeting in his office, but she refused to attend the meeting if only Resnick and Patricia Crispino ("Crispino"), chairperson of the United Federation of Teachers ("UFT"), were present unless she could record the meeting. (Compl., ¶ 18 n. 1). When Resnick denied plaintiff's request to record the meeting, plaintiff left his office and demanded that Resnick put any further communications to her in writing. (Compl., ¶ 19).
Plaintiff alleges that she was subsequently removed from her position as a coordinator in the Mentoring Program and was replaced by the teacher whom she had alleged was engaged in inappropriate relations with a student. (Compl., ¶ 20).
Plaintiff alleges that by letter dated September 3, 2004, she complained about Resnick and the conditions at the GCAHS to defendant Santiago Taveras ("Taveras"), the superintendent. (Compl., ¶ 21).
Plaintiff alleges that on the first day of the 2004-2005 school year, she was advised that her regular teaching position "had been excessed" and that she was reassigned as an "Absent Teacher Reserve" ("ATR"), i.e., the school's in-house substitute teacher, due to a decrease in student enrollment for her licensed area, i.e., the video production department. (Compl., ¶¶ 22, 26-27). According to plaintiff, Liz Torres ("Torres"), a younger teacher who was under the age of forty (40), and who was not African-American, was hired to teach photography classes, which plaintiff had taught for two (2) years. (Compl., ¶¶ 23-24, 26). Plaintiff further alleges that in February 2005, the video production department was re-opened and taught by Torres. (Compl., ¶ 27).
Plaintiff alleges that while employed as an ATR, defendants Matt Guttman, the assistant vice principal for the social studies department, and Renal Piton, the assistant vice principal for the math department, "systematically harassed Plaintiff by excessively walking into classes she covered, peering through windows into the classrooms from the hallway and by appearing in classrooms she was scheduled to cover before she arrived in order to find or fabricate any irregularities that could be used to write letters to be placed in her Teacher's file." (Compl., ¶ 28).
Plaintiff alleges that on October 22, 2004, after Taveras spoke with Resnick about plaintiff's September 3, 2004 letter to him, Resnick elbowed plaintiff in her ribs while she was walking in a hallway ("the October incident"). (Compl., ¶ 30).
On January 5, 2005, the DOE declared the GCAHS to be "a failed High School" and mandated that it be under state review. (Compl., ¶ 32). According to plaintiff, during an open faculty meeting, she made a statement regarding the overall operation of the school which "inflamed Principal Resnick and led him to summon Plaintiff to meet with him in his office in a series of letters written to her between January 25-28, 2005." (Compl., ¶ 32). Plaintiff refused to meet with Resnick.
On January 28, 2005, plaintiff filed a police report against Resnick regarding the October incident. (Compl., ¶ 33). According to plaintiff, Resnick filed a counter-police report against her on February 11, 2005. (Compl., ¶ 34).
On March 2, 2005, plaintiff filed a charge of discrimination against the DOE with the New York State Division of Human Rights ("NYSDHR"), alleging discrimination based upon her race, sex and age in relation to an unsatisfactory performance rating she received on June 23, 2004, the reassignment of her after-school program to a Caucasian teacher, her "demotion" to substitute teacher, the excessing of her regular teaching position and the subsequent assignment of that position, upon re-opening, to a "non-Black" teacher. (Compl., ¶ 35; Declaration of Daniel Chiu [Chiu Decl.], Ex. A).
On March 9, 2005, Taveras notified plaintiff that an investigation would be conducted into the October incident. (Compl., ¶ 36). In response, plaintiff e-mailed Taveras, inter alia, to request permission to record her meeting with Taveras. (Compl., ¶ 37).
On March 10, 2005, a meeting was held in Resnick's office to investigate the October incident, which plaintiff was denied permission to record. (Compl., ¶¶ 38-39). According to plaintiff, the sole issue raised during the investigation was the timing of the incident, of which plaintiff indicated that she could not be certain. (Compl., ¶¶ 39-40). Plaintiff alleges that Taveras had a conflict of interest which "prevented him from being able to conduct a fair and thorough investigation of Plaintiff's police report filing against Principal Resnick." (Compl., ¶ 87).
On March 11, 2005, Taveras reported to the director of special investigations that plaintiff was guilty of filing a false police report against Resnick because she alleged that the October incident occurred at 11:30 a.m., a time that plaintiff was in class. (Compl., ¶ 41).
On March 12, 2005, plaintiff was removed from the GCAHS and sent to the DOE's Temporary Reassignment Center ("TRC" or "rubber room") to await a hearing on disciplinary charges. (Compl., ¶ 42).
On or about March 16, 2005, plaintiff filed a charge of discrimination and retaliation against the DOE with the NYSDHR relating to Taveras's investigation of the October incident and finding that she was guilty of filing a false police report against Resnick. (Chiu Decl., Ex. B).
On May 3, 2005, plaintiff complained about the conditions in the TRC and requested a medical accommodation because she was experiencing "severe mental and physical distress" as a result of sitting in a "windowless overcrowded room" for more than four (4) hours each day. (Compl., ¶ 44).
On September 15, 2005, Lawson was appointed as the hearing officer presiding over the hearing on the disciplinary charges against plaintiff pursuant to New York Education Law § 3020-a ("the 3020-a hearing"). (Compl., ¶ 50).
On March 27, 2006, plaintiff and eighteen (18) other teachers filed a grievance against the DOE for the "unhealthy and unsafe conditions at" the TRC ("the health and safety grievance"). (Compl., ¶ 60).
On June 20, 2006, plaintiff applied for an extension of time to complete her final course requirement for a New York State Permanent Teaching Certificate. (Compl., ¶ 61).
According to plaintiff, on August 7, 2006, the New York State Department of Labor Public Employee Safety and Health Bureau ("PESHB") sustained her health and safety grievance following an inspection of the TRC which found overcrowded conditions, a failure to implement an emergency exit plan and a single exit doorway hung in the wrong direction. (Compl., ¶¶ 62-63).
On January 7, 2007, the DOE informed plaintiff that her request for an extension of time to complete her coursework was denied since her license was invalidated once she had been excessed from her regular teaching position in March 2005. (Compl., ¶ 66).
On January 19, 2007, the 3020-a hearing commenced on the DOE's disciplinary charges against plaintiff for, inter alia: (1) having an open newspaper on her desk; (2) singing in an Economic class; (3) allowing students to play cards and listen to music; (4) allowing a student to wear a hat in class; (5) holding what appeared to be a novel during class; (6) excessive absences and latenesses; and (7) filing a false police report against Resnick. (Compl., ¶¶ 54, 67).
By orders dated January 30, 2007, the NYSDHR found no probable cause for plaintiff's March 2, 2005 and March 16, 2005 charges of discrimination and retaliation. (Chiu Decl., Exs. D and E).
On or about April 1, 2007, the EEOC issued a right to sue letter to plaintiff. (Compl., ¶ 126).
On April 16, 2007, plaintiff's health and safety grievance was denied by the DOE. (Compl., ¶ 88).
The 3020-a hearing on the disciplinary charges against plaintiff was concluded on or about September 21, 2007. (Compl., ¶ 92). On November 22, 2007, Lawson issued an opinion and decision finding, inter alia, plaintiff guilty of two (2) specifications for latenesses, one (1) specification for insubordination, three (3) specifications for rendering unsatisfactory lessons and one specification (1) for filing a false report, and recommending a penalty of a four (4) month suspension without pay.
Plaintiff alleges that on January 28, 2008, her medical benefits were terminated despite the DOE's legal requirement to maintain a teacher's access to such benefits while temporarily suspended. (Compl., ¶ 96).
On or about February 1, 2008, plaintiff sought a temporary stay of her four (4) month suspension in the New York State Supreme Court, County of New York ("the state court"). Saunders v. City of New York, Department of Education, no. 08/400258 (N.Y. Sup. Ct.) (See Chiu Decl., Ex. F).
On or about March 27, 2008, plaintiff commenced a proceeding in the state court against the DOE, Resnick, Crispino, Guttman and Piton, pursuant to New York Civil Procedure Law and Rules §§ 7511 and 7803(4), seeking vacatur of Lawson's decision and a preliminary injunction enjoining her four (4) month suspension, restoring her teaching duties, directing payment to her of salary and benefits previously withheld from her, and refunding her payment of a previously imposed monetary penalty ("the state court proceeding"). Id. (See Chiu Decl., Ex. G).
By order dated April 10, 2008, the state court (Abdus-Salaam, J.) denied plaintiff's petition and dismissed the state court proceeding as barred by the statute of limitations. (Chiu Decl., Ex. H). However, by order dated July 28, 2008, the state court (Abdus-Salaam, J.) granted plaintiff's motion for reconsideration, denied the petition on the merits and dismissed the state court proceeding with prejudice. (Chiu Decl., Ex. J).
On April 30, 2008, plaintiff had an interview with the Daily News regarding teachers placed in the TRC or "rubber room." (Compl., ¶ 100).
On May 29, 2008, plaintiff returned to the TRC following her suspension. (Compl., ¶ 103).
Plaintiff alleges that on June 15, 2008, she did not receive her regular paycheck and that defendant Donna Dennis ("Dennis"), a DOE human resources assistant, denied her request for an emergency check after consulting with payroll officer "Zeldon." (Compl., ¶¶104-106). According to plaintiff, when she contacted Zeldon, he informed her that Dennis never contacted him requesting an emergency check; that "it appeared as if Donna Dennis and Esther Anthinez [sic] intentionally waited to submit payroll materials" regarding plaintiff; and that he was suspicious about the accuracy of the timesheets submitted by Dennis and defendant Esther Antinez ("Antinez") and the manner in which they were handling plaintiff's timesheets. (Compl., ¶¶ 109-114).
On July 1, 2008, plaintiff was informed that her employment was terminated. (Compl., ¶ 115). On that same date, plaintiff began organizing a group of colleagues to expose the use of the TRC to destroy teachers' lives. (Compl., ¶ 116).
On July 3, 2007, plaintiff filed a complaint against the DOE alleging employment discrimination based upon her age, race, and sex, and retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et. seq. By order dated July 14, 2009, I granted the DOE's motion to dismiss the complaint pursuant to Rules 8(a)(2) and 12(b)(6) of the Federal Rules of Civil Procedure and dismissed plaintiff's complaint without prejudice and with leave to amend. Plaintiff timely filed an amended complaint, in which she, inter alia, added the individual DOE defendants, the UFT defendants and Lawson. In the amended complaint, plaintiff asserts, inter alia, the following claims for relief: (1) discrimination, retaliation and a hostile work environment in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., (first claim for relief); (2) discrimination based on race and sex, and retaliation, in violation of Title VII (second claim for relief); (3) violations of plaintiff's First Amendment rights (third and eighth claims for relief); (4) violations of the Fair Labor Standard Labor Act ("FLSA"), 29 U.S.C. § 215(a)(3), and Section 8 of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158, (fourth claim for relief); (5) discrimination based on race, age and sex, and retaliation, in violation of 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.C. Admin. Code § 8-101, et seq., (sixth and seventh claims for relief, respectively); and (6) violations of plaintiff's Fourteenth Amendment equal protection and due process rights and First Amendment freedom of speech rights under 42 U.S.C. § 1983 (eighth claim for relief).
By order dated January 19, 2010, I: (1) granted the branch of Lawson's motion seeking dismissal of the amended complaint as against him and dismissed the amended complaint with prejudice as against him as barred by the doctrine of absolute immunity: (2) sua sponte dismissed the amended complaint as against Rivera and Mastramauro; and (3) sua sponte dismissed plaintiff's (a) due process claims (fifth and eighth claims for relief) as against all defendants except Dennis, Antinez and the DOE based upon the failure to pay plaintiff from May through August 2008, (b) ADEA, Title VII, FLSA and NLRA claims (first, second and fourth claims for relief, respectively) against all defendants except the DOE, and (c) NYSHRL and NYCHRL claims (sixth and seventh claims for relief) against the UFT defendants. Plaintiff subsequently withdrew the amended complaint in its entirety as against the UFT defendants. Thus, the following claims remain in this action: (1) the ADEA, Title VII, FLSA and NLRA claims against the DOE (first, second and fourth claims for relief); (2) the due process claims under Section 1983 (fifth and eighth claims for relief) as against Dennis, Antinez and the DOE based upon the failure to pay plaintiff from May through August 2008; (3) the First Amendment retaliation and equal protection claims pursuant to Section 1983 (third and eighth claims for relief) as against the DOE defendants; and (4) the NYSHRL and NYCHRL claims (sixth and seventh claims for relief) as against the DOE defendants.
The DOE defendants now move pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Procedure to dismiss the amended complaint as against them and plaintiff cross-moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment.
Federal courts are courts of limited jurisdiction, see Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 162 L.Ed.2d 502 (2005); Frontera Resources Azerbaijan Corp. v. State Oil Co. of Azerbaijan Republic, 582 F.3d 393, 397 (2d Cir. 2009), and may not preside over cases absent subject matter jurisdiction. See Exxon Mobil, 545 U.S. at 552, 125 S.Ct. 2611 (holding that federal courts may not exercise jurisdiction absent a statutory basis); County of Nassau, N.Y. v. Hotels.com, LP, 577 F.3d 89, 91 (2d Cir. 2009) (holding that federal courts lack power to disregard the limits on their jurisdiction imposed by the Constitution or Congress). Lack of subject matter jurisdiction cannot be waived and may be raised at any time by a party or by the court sua sponte. Oscar Gruss & Son, Inc. v. Hollander, 337 F.3d 186, 193 (2d Cir. 2003); Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700 (2d Cir. 2000); see also Union Pacific R. Co. v. Brotherhood of Locomotive Engineers and Trainmen General Committee of Adjustment, Cent. Region, 130 S.Ct. 584, 596 (2009) ("[s]ubject-matter jurisdiction, * * * refers to a tribunal's power to hear a case, a matter that can never be forfeited or waived." (internal ...