The opinion of the court was delivered by: Denise Cote, District Judge:
Plaintiff Naisha Jackson ("Jackson"), a former employee of the New York City public schools, has brought this action under 42 U.S.C. § 1983 against the New York City Department of Education ("Department of Education") and Good Shepherd Services ("Good Shepherd"), a social service agency working in the public schools, alleging that the defendants' deliberate indifference to the racism and aggressive behavior of the staff and students in the school where Jackson worked created an unsafe environment in violation of her Fifth and Fourteenth Amendment Due Process rights. In addition, Jackson alleges that the defendants discriminated and retaliated against her on the basis of her race. For the following reasons, the Department of Education's motion to dismiss is granted in part.
The following allegations are taken from the complaint. Good Shepherd contracts with the Department of Education to provide counseling and other social services in the New York City public schools. Beginning in 2007, Jackson was employed by Good Shepherd as the Student Internship Coordinator at the Bronx Community High School. On several occasions Jackson, who is half Asian and half African-American, overheard the staff of the school making derogatory and racist remarks about African-Americans. Jackson reported one of these incidents to Daniel McPartland, a guidance counselor at the school, and another to her supervisor, Nida Pastrana ("Pastrana").
Then, in September 2008, Jackson's department moved to a new location where several schools were located. These schools were noted for their violent and chaotic atmosphere. Jackson filed incident reports regarding violent and aggressive behavior displayed by students. Jackson contends that the Department of Education was largely indifferent towards the violent behavior displayed by the students.
Jackson was assigned to supervise AH, a student with a history of violent outbursts. On May 8, 2009, AH became upset after Jackson asked AH and other students congregating in her office to leave. AH began yelling obscenities at Jackson. AH then assaulted Jackson; school security officers were called and removed AH from the area. Jackson spoke to her supervisors about the incident and filed an incident report. In the course of discussing the incident with Jackson, the principal explained to Jackson that Jackson was going to hit AH because Jackson "was a black female." Pastrana, a Hispanic female, told Jackson that she sympathized with Jackson's frustration with the students and that "at times I want to get Latina on the parents." Jackson interpreted this remark "as racially-charged in that Pastrana was suggesting that [Jackson] had been acting like a stereotypically angry African-American female, and that a person of another race would not have responded to the situation as [Jackson] did."
Jackson's supervisors told her that she had not handled the situation with AH correctly and that they would be bringing corporal punishment charges against her. Jackson fears that such an allegation will prevent her from working in the education field in the future. Jackson experienced anxiety because of the confrontation with AH, took sick leave, and resigned her employment on May 15, 2009. On May 18, she was advised that she was being fired; she was informed that the school would agree to let her resign instead if she changed the date on her resignation letter to May 19. Jackson refused, and on May 20 she was advised that she was fired.
On March 5, 2010, Jackson filed a charge of discrimination against the defendants with the Equal Employment Opportunity Commission ("EEOC"). The EEOC issued a right to sue letter on July 21, 2010. Jackson filed this action in New York state court on October 25, 2010 and she served both Good Shepherd and the Department of Education on November 8. The Department of Education filed a notice of removal on December 8. Jackson's complaint asserts four causes of action against both defendants for violations of her substantive due process rights under the Fifth and Fourteenth Amendments; race discrimination and retaliation in violation of Section 1981; race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2 et seq.; and disability discrimination and retaliation in violation of the Americans with Disabilities Act of 19920, 29 U.S.C. § 12112 et seq. ("ADA"). In addition, Jackson asserts claims under the New York State and City human rights laws against Good Shepherd. On March 21, 2011, the Department of Education filed a motion to dismiss the complaint. The motion was fully submitted on April
22. Good Shepherd has not filed an answer or a motion to dismiss.
The Department of Education primarily contends that Jackson has failed to allege facts sufficient to state a substantive or procedural due process violation, a race discrimination claim, or a retaliation claim. The Department of Education further argues that Jackson has not identified any Department of Education policy, custom, or practice that caused the alleged constitutional deprivations.
On a motion to dismiss, the court must "accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor." LaFaro v. New York Cardiothoracic Group, PLLC, 570 F.3d 471, 475 (2d Cir. 2009) (citation omitted). The court is "not bound to accept as true legal conclusions couched as factual allegations. Only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 475-76 (citing Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009)).
I. State-Created Danger Claim The Supreme Court's decision in DeShaney v. Winnebago County Dep't. of Soc. Servs., 489 U.S. 189 (1989), established the general principle that "a State's failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." Id. at 197. The Second Circuit has distinguished DeShaney's holding from "an allegation that [police] officers in some way had assisted in creating or increasing the danger to the victim." Dwares v. City of New York, 985 F.2d 94, 99 (2d Cir. 1993). More recently, the Second Circuit found that where police officers "implicitly but affirmatively" encourage violence, such conduct could form a basis of a Due Process claim against the officers. Okin v. Village of Cornwall-on-Hudson Police Dep't, 577 F.3d 415, 430 (2d Cir. 2009).
Jackson has failed to allege anything more than several instances of inaction on the part of the Department of Education. Although she alleges that she filed several reports of misbehavior by students, and that the Department of Education did not respond to those reports, she has not alleged sufficient facts to give fair notice that this failure to act constituted an implicit but affirmative message condoning violence in the school. Particularly in a school with students known for their aggressive and violent behavior, as Jackson alleges, every failure to discipline does not constitute implicit encouragement of misbehavior. Further, the mere fact that Jackson was assigned to supervise a student with a history ...